Telecom Master Services Agreement Between T-MOBILE USA, INC. and Inteliquent, Inc. dated June 23, 2015

1.

DEFINITIONS

2

1.1

Certain Definitions.

2

1.2

Other Terms.

2

2.

BACKGROUND AND OBJECTIVES

2

2.1

Background and Objectives.

2

2.2

Construction.

2

3.

AGREEMENT STRUCTURE, INTERPRETATION AND ENFORCEABILITY

3

3.1

Agreement Structure.

3

3.2

Interpretation of Documents.

3

3.3

T-Mobile Parent and T-Mobile Affiliates.

4

3.4

Parent Guaranty; Joint and Several Liability.

4

3.5

Entire Agreement.

4

4.

SERVICES AND DELIVERABLES

4

4.1

Provision of Services and Deliverables.

4

4.2

Project Management.

6

4.3

Provision of Services to Affiliates.

7

4.4

New Services and Orders; Future SAs.

7

4.5

Processing of Service Orders under Existing SAs.

8

4.6

Acceptance of Services and Deliverables.

9

4.7

Transition Services.

9

4.8

Network Connectivity

13

4.9

Governmental Approvals and Consents.

14

4.10

Knowledge Sharing.

14

4.11

Quality Control.

15

4.12

Service Locations.

15

5.

TERM

16

5.1

Term of the GTCs, SAs, and Orders.

16

5.2

Extensions of Term.

16

5.3

Termination by T-Mobile.

16

5.4

Termination by Provider.

18

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5.5

Cross-Termination.

18

5.6

Return of Property.

18

5.7

Fraud Prevention Assistance.

18

5.8

Termination/Expiration Assistance.

18

6.

CHARGES

22

6.1

General.

22

6.2

Reimbursable Expenses.

22

6.3

Taxes.

23

6.4

Charges for New Services.

25

6.5

Extraordinary Events

26

7.

INVOICING AND PAYMENT

26

7.1

General.

26

7.2

Invoicing.

26

7.3

Payment Due.

27

7.4

Accountability.

28

7.5

Proration.

28

7.6

Set-Off.

28

7.7

Disputed Charges.

28

8.

MOST-FAVORED CUSTOMER; BENCHMARKING; CONTINUOUS IMPROVEMENT AND BEST PRACTICES

28

8.1

Most-Favored Customer.

28

8.2

Benchmarking.

29

8.3

Continuous Improvement and Best Practices.

29

9.

SAFEGUARDING OF DATA; CONFIDENTIALITY

30

9.1

T-Mobile Confidential Information and Personal Information.

30

9.2

Safeguarding T-Mobile Confidential Information.

31

9.3

Security Breaches.

33

9.4

Confidentiality.

33

9.5

Security of Cardholder Information.

35

10.

PERFORMANCE STANDARDS AND SERVICE LEVELS

36

10.1

General.

36

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10.2

Productivity Commitments.

36

10.3

Service Level Reporting.

37

10.4

Quarterly and Annual Reviews.

37

10.5

Measurement and Monitoring Tools.

37

10.6

Adjustment of Service Levels

37

10.7

Root-Cause Analysis.

38

10.8

Service Credits.

39

10.9

Deliverable Credits.

39

10.10

Performance Information.

39

11.

GOVERNANCE

40

11.1

Governance Teams

40

11.2

Use of Subcontractors.

40

11.3

Service Change Procedures.

41

11.4

Change in Laws.

43

11.5

Procedures Manual

43

12.

AUDITS

44

12.1

Audit Rights.

44

12.2

Audit Follow-Up.

45

12.3

Audit Procedure Development.

46

12.4

Records Retention.

46

13.

PERSONNEL

46

13.1

Key Provider Personnel.

46

13.2

Services Personnel Qualifications.

47

13.3

Services Personnel Verification and Additional Obligations.

48

13.4

Maintaining Services Personnel Records.

50

13.5

Transfer of T-Mobile Personnel

50

13.6

Service Delivery Management

50

14.

SOFTWARE AND PROPRIETARY RIGHTS

51

14.1

General.

51

14.2

T-Mobile Software.

51

14.3

Provider Software.

51

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14.4

Existing Third Party Software.

52

14.5

New Third Party Software.

53

14.6

Rights in Newly Developed Software and Other Materials.

54

14.7

Open Source Software.

54

14.8

Ownership of Non-Software Materials.

55

14.9

Work Made for Hire.

55

14.10

Residual Knowledge.

56

14.11

Export

56

14.12

Escrow of Source Code.

56

14.13

License to Services.

57

14.14

Services Personnel IP.

57

15.

THIRD PARTY CONTRACTS, FACILITIES AND EQUIPMENT.

57

15.1

Third Party Contracts.

57

15.2

Assigned Contracts.

59

15.3

Performance Under Contracts.

59

15.4

Facilities.

59

15.5

Procurement of Equipment and Software.

60

15.6

Disposal of Equipment.

61

15.7

Required Consents

61

16.

REPRESENTATIONS AND WARRANTIES

61

16.1

Work Standards.

61

16.2

Certifications.

61

16.3

Maintenance.

61

16.4

Efficiency and Cost Effectiveness.

62

16.5

Technology.

62

16.6

Ownership and Use; Non-Infringement.

62

16.7

Third Party Contracts.

62

16.8

Authorization.

62

16.9

Inducements.

63

16.10

Viruses.

63

16.11

Disabling Code.

63

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16.12

Deliverables.

63

16.13

Foreign Corrupt Practices Act

64

16.14

Previous Security Audits

65

16.15

Disclaimer.

65

17.

INSURANCE AND RISK OF LOSS

66

17.1

Insurance.

66

17.2

Risk of Loss.

67

18.

INDEMNITIES

68

18.1

Indemnity by Provider.

68

18.2

Indemnity by T-Mobile.

69

18.3

Additional Indemnities.

69

18.4

Infringement.

69

18.5

Indemnification Procedures.

70

18.6

Subrogation.

71

19.

LIABILITY

71

19.1

General Intent.

71

19.2

Liability Restrictions.

71

19.3

Force Majeure; Excused Performance.

73

19.4

Payment Obligation.

75

19.5

Allocation of Resources.

75

19.6

Disaster Recovery and Business Continuity Plans.

75

19.7

Force Majeure Limits.

75

19.8

Alternate Source.

75

19.9

Excused Performance.

76

20.

DISPUTE RESOLUTION

76

20.1

Dispute Resolution Procedures.

76

20.2

Informal Dispute Resolution.

76

20.3

Immediate Relief.

76

20.4

Escalation.

77

20.5

Continued Performance.

77

20.6

Governing Law and Jurisdiction.

77

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21.

GENERAL

77

21.1

Binding Nature of Assignment; Divestments.

77

21.2

Amendment.

78

21.3

Compliance with Laws and Regulations.

78

21.4

Non-Solicitation; Non-Compete

83

21.5

Notices.

83

21.6

Counterparts.

84

21.7

Headings.

84

21.8

Relationship of Parties.

84

21.9

Severability.

85

21.10

Consents and Approvals.

85

21.11

Waiver of Default; Cumulative Remedies.

85

21.12

Survival.

85

21.13

Public Disclosures.

85

21.14

Service Marks.

86

21.15

Third Party Beneficiaries.

86

21.16

Covenant of Good Faith.

86

21.17

Due Diligence Prior to Contract Signing.

86

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Schedules

Titles

Schedule 1

Definitions

Schedule 2

Intentionally Blank

Schedule 3

T-Mobile Policies and Procedures

Schedule 4

Termination Assistance

Schedule 5

Benchmarking

Schedule 6

Regulatory Compliance

Schedule 7

Security

Schedule 8

Governance

Schedule 9

Provider-Owned Work Product

Schedule 10

Pro Forma Escrow Agreement

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Service Attachments

Start Date

End Date

TM File ID/Date

PSTN Services Attachment

06/23/2015

INTELIQUENT, INC.

T-MOBILE USA, Inc.

By:

/s/ ▇▇▇▇▇ ▇▇▇▇▇

By:

/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

Name:

▇▇▇▇▇ ▇▇▇▇▇

Name:

J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

Title:

SVP of Global Sales

Title:

CFO

1.

Definitions 

1.1

Certain Definitions.

1.2

Other Terms.

2.

Background and Objectives

2.1

Background and Objectives.

(a)

T-Mobile is a provider of wireless voice, messaging and data services. T-Mobile has determined that it will rely on Provider to perform certain services on its behalf that it previously performed itself or for which it has previously relied on third party providers.

(b)

T-Mobile believes that establishing a new strategic partnership with an experienced, world-class service provider will benefit T-Mobile’s overall business, and significantly reduce costs, by making certain skills, operating practices, economies of scale, processes, technologies and flexibility available to T-Mobile.

(c)

This Agreement sets forth the terms and conditions under which: (i) T-Mobile will obtain those Services and Deliverables from Provider set forth herein; and (ii) Provider will provide such Services and Deliverables, including the functions, responsibilities and tasks attendant with such Services and Deliverables, to T-Mobile.

2.2

Construction.

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3.

Agreement Structure, Interpretation and Enforceability 

3.1

Agreement Structure.

(a)

Purpose of these GTCs and SAs. The purpose of these GTCs is to set out the obligations of the Parties and to provide the framework and basic terms of each of the SAs, each of which will be entered into by T-Mobile and Provider. Each SA entered into by the Parties shall incorporate the terms, mutatis mutandis, set forth in these GTCs as if such terms were restated in each such SA, subject only to such modifications as are expressly provided in the respective SAs to account for particular variations in the Services or Deliverables to be provided thereunder, as well as such changes as may be undertaken for conformance with applicable Laws. Each SA, including the terms of these GTCs and its Exhibits incorporated therein, will constitute a binding contract on the Parties.

(b)

Orders. Each SA may include one or more orders (each an “Order”), which will be attached as Schedules thereto, and which will be separately executed by T-Mobile and Provider. Each of these Orders will describe the particular Services and Deliverables to be provided to T-Mobile under the respective SA.

3.2

Interpretation of Documents.

(a)

these GTCs;

(b)

the applicable SA, except to the limited extent that the conflicting terms in these GTCs are expressly superseded by the terms of the applicable SA (e.g., with a phrase therein such as “notwithstanding any other provision in the GTCs”), in which case the conflicting terms of SA will prevail, but only with respect to the interpretation of such SA; and

(c)

the applicable Order, except to the limited extent that the conflicting terms in these GTCs are both (i) expressly superseded by the terms of the applicable Order and (ii) expressly cited by section number, in which case the conflicting terms of such Order will prevail, but only with respect to the interpretation of such Order.

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3.3

T-Mobile Parent and T-Mobile Affiliates. 

3.4

Parent Guaranty; Joint and Several Liability.

3.5

Entire Agreement.

4.

Services and Deliverables

4.1

Provision of Services and Deliverables.

(a)

General. During the Term, Provider will provide the Services and Deliverables to T-Mobile in accordance with the terms and conditions of: (i) the applicable SA (including any Orders executed thereunder as well as any other Schedules and Appendices attached thereto); and (ii) these GTCs as well as any other Schedules and Appendices attached thereto, in accordance with Section 3.1 (Agreement Structure). T-Mobile will perform those obligations with respect to an SA or Order that are set forth therein as “T-Mobile Responsibilities.” The types of Services to be performed under the SAs include, by way of example but not limitation, Transition Services, Network Services, Disaster Recovery Services and Termination Assistance Services, as further described in these GTCs and the SAs.

(b)

Implied Services and Deliverables. If any services, functions or responsibilities that are not specifically described in these GTCs, the SAs or Orders are nonetheless inherently

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required, or are necessary or customary with respect to the particular Services and Deliverables (i.e., they are provided by the Comparator Group for similar services), for the proper performance and provision of the Services or Deliverables, they will be deemed to be implied by and included within the scope of the Services or Deliverables to the same extent and in the same manner as if specifically described in these GTCs, the SAs or the Orders, as applicable. The Services and Deliverables will also include the services, functions and responsibilities (and any services, functions and responsibilities that are an inherent, necessary or customary part thereof) performed during the twelve (12) months preceding the applicable SA Effective Date or Order Effective Date, as the case may be, by T-Mobile personnel (including employees and contractors) who have been or are to be displaced or re-assigned as a result of such SA or Order and are transferred to Provider. Except as otherwise expressly provided in these GTCs or the applicable SAs, Provider will be responsible for providing the Facilities, Services, Services Personnel, Equipment, Software, and other resources as necessary to perform the Services or provide the Deliverables. The procedures for the implementation of the Services or Deliverables, including the timeline for such implementation under these GTCs, will be set forth in the Transition Plan or the SA, as appropriate, Appropriate procedures for the Services or Deliverables under the Orders may be further provided in the Procedures Manual, and Provider will perform the Services in accordance with the Procedures Manual, except to the extent that the process of Procedures Manual conflicts with the Orders or the SA. In no event will the terms of the Procedures Manuals be deemed to amend the terms of these GTCs, an SA or an Order, nor will the Procedures Manual be deemed to create any binding obligation upon T-Mobile. 

(c)

Access to Provider’s Facilities, Software and Equipment. At all times during the Term, Provider will cooperate with T-Mobile and provide such information regarding the operating environment, system constraints, system security and other operating parameters relating to such Facilities, Equipment and Software as requested by T-Mobile to the extent necessary for its use of the Services. If, pursuant to Section 4.1(e) (Step-In-Rights) of these GTCs, T-Mobile has the express right to step in and operate designated Equipment and Intellectual Property, then Provider hereby grants T-Mobile, for the period during which T-Mobile exercises such step-in rights only, the limited right to use such Equipment and Intellectual Property as Provider’s agent for that purpose.

(d)

Services Performed by T-Mobile. T-Mobile will have the right to perform itself, or retain third parties to perform, all or any portion of the obligations or services to be performed by T-Mobile under an Order or an SA. To the extent T-Mobile performs any such obligations or services itself or retains third parties to do so as permitted herein, Provider will cooperate with T-Mobile or any such third party.

(e)

Step-In Rights. Without limitation to T-Mobile’s other rights hereunder (including, by way of example but not limitation, T-Mobile’s right to revoke its approval of subcontractors pursuant to Section 11.2(b) (Subcontractors – Discontinuation of Use) hereto), if Provider materially fails to perform the Services hereunder (e.g., by causing a system-wide outage), or if such Services are substantially degraded or delayed, as a result of a Force Majeure Event or a breach of Provider’s obligations (the “Disrupted Services”), and Provider is unable or unlikely to provide the Disrupted Services in

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accordance with the Performance Standards or the other terms of the applicable SA or Order(s), then T-Mobile may, at its sole discretion, with delivery of written notice to Provider, either perform the Disrupted Services itself or have the Disrupted Services performed by a third party, pursuant to its rights under Section 4.1(d) (Services Performed by T-Mobile), subject to any limitations that third parties may apply under contract, license or Law. Provider will undertake all commercially reasonable efforts to cooperate with T-Mobile and/or the third party, as applicable, in order to facilitate the performance of the Disrupted Services by T-Mobile or such third party, which cooperation will include, by way of example but not limitation: (i) working to eliminate the limitations that third parties may apply under contract, license or Law and providing access to and permitting use by T-Mobile or any such third party of any of Provider’s Facilities, Equipment and Software being used to provide the Services; and (ii) providing such information regarding the operating environment, system constraints and other operating parameters as a person with reasonable commercial skills and expertise would find reasonably necessary for T-Mobile or a third party to perform the applicable Services. T-Mobile and third parties retained by T-Mobile will comply with Provider’s reasonable security and confidentiality requirements, and will, to the extent performing work on Provider-owned, licensed or leased Software or Equipment, comply with Provider’s reasonable work standards, methodologies and procedures. Provider will work with T-Mobile to prevent or circumvent any problems or delays of which it is aware. Provider will take at least commercially reasonable efforts to recommence the performance of the Disrupted Services, in full conformance with the requirements of the Best Practices, as quickly as commercially possible and will do so after it has demonstrated, to T-Mobile’s reasonable satisfaction, that it is prepared to perform the Disrupted Services in accordance with the Best Practices and the other requirements of the applicable SA and/or Order(s). No Charges will be owed to Provider for the Disrupted Services during the time that the Disrupted Services are performed by T-Mobile or a third party. Without limitation to T-Mobile’s other rights or remedies hereunder, Provider will reimburse T-Mobile for Disrupted Services, up to the maximum amount set forth in Section 19.2(a), for the difference between: (i) the costs to T-Mobile for performing the Disrupted Services itself or retaining third parties to do so (as applicable); and (ii) the Charges that otherwise would have been payable for the applicable Services hereunder resulting.  

4.2

Project Management.

(a)

participating with T-Mobile in the development of technical requirements and scope for the implementation and provision of the Services and Deliverables;

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(b)

preparing proposals, including cost estimates, schedules to complete, lists of necessary interconnection points, facilities availability, circuit delivery dates, switch ports, and ongoing support requirements; 

(c)

providing T-Mobile with reasonable information in order for T-Mobile to determine its return on investment and cost benefit justification;

(d)

using recognized project management tools in the preparation of project proposals, developing functional and technical requirements, developing build/buy/reuse approaches and implementing projects;

(e)

communicating with appropriate Project managers of T-Mobile and others as needed to keep implementation of the Service and Deliverables on time. Project status reporting shall be performed weekly via an executive report listing on all open implementation matters and their status;

(f)

managing all Projects in a structured manner in order to implement the Services and Deliverables to T-Mobile;

(g)

maintaining all documentation necessary to ensure that the Services and Deliverables meet all regulatory compliance requirements; and

(h)

managing the implementation of the Services and Deliverables from design phase through Implementation.

4.3

Provision of Services to Affiliates.

4.4

New Services and Orders; Future SAs.

(a)

New Services. T-Mobile may, at any time during the Term, request Provider to perform one or more New Services apart from those Services currently being performed under the SAs or the Orders attached to the SAs at such time. For the purpose of this Agreement, “New Services” means new functions or processes that are entirely outside the scope of any Services covered by an existing SA or Order; for avoidance of doubt, “New Services” will not be deemed to include any changes to the Services under existing SAs or Orders, such as, by way of example but not limitation: (i) changes to Services described in an Order pursuant to the Service Change Procedures, for conformance with applicable Laws pursuant to Section 16.1 (Work Standards) and Section 21.3 (Compliance with Laws and Regulations), or pursuant to Provider’s obligations regarding continuous improvements and Best Practices under these GTCs and the SAs; or (ii) the division of an existing SA or Order into two (2) or more SAs or Orders, the

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merging of existing SAs or Orders into a single SA or Order, or other reorganizations of existing SAs or Orders. A request for New Services from T-Mobile will be addressed pursuant to the terms of Section 6.4 (Charges for New Services). No new Order for New Services will be effective unless such Order conforms to the requirements set forth in these GTCs and the applicable SA, and is added to an applicable SA by execution of a new SA or an amendment to an existing SA by T-Mobile and Provider. If the New Services constitute services that were previously performed internally by T-Mobile, then the transfer of such New Services to Provider will be undertaken pursuant to a Transition Services Schedule to be developed by the Parties. 

(b)

New SAs. Following the Effective Date, T-Mobile and Provider may agree to enter into one or more SAs, which agreements will be substantially in the format of the existing SAs.

(c)

SAs for New Services. In the event that New Services are proposed for which there is not an SA at such time, then if T-Mobile proposes that Provider enter into an SA for such New Services, Provider and T-Mobile will cooperate and in good faith develop and agree to such new SAs. To the extent that the Pricing Schedule of any existing SAs provides rates for the resources contemplated for the New Services in a new SA, Provider will propose Charges for the New Services based upon the methodology provided in such Pricing Schedule, provided that the rates for such resources will be adjusted as required for conformance with Provider’s obligations under Section 8.1 (Most-Favored Customer).

(d)

Consolidation of SAs. If T-Mobile requests, for administrative or organizational purposes, that existing Services be allocated to a new SA or that existing SAs be consolidated into fewer SAs, then Provider will not withhold its consent to such additional SAs or revisions to existing SAs, provided that the Parties will work diligently and in good faith to structure the revised agreements for mutually beneficial tax treatment consistent with applicable Laws and to otherwise make conforming changes for requirements of applicable Laws, provided that such additional or revised SAs shall not change the economic benefit received by Provider for the provision of the applicable Services or Deliverables.

(e)

Non-Exclusivity; No Further Obligation. Provider acknowledges and agrees that T-Mobile is under no obligation whatsoever to execute any new SA with Provider. Further, this Agreement does not give Provider any exclusive rights with respect to the provision of services similar to the Services provided by Provider to T-Mobile.

4.5

Processing of Service Orders under Existing SAs.

(a)

T-Mobile may request new or modified Services pursuant to the MSA and the applicable SA(s) (“T-Mobile Request”), and may include necessary and appropriate additional terms and conditions, including without limitation the type of service or product to be ordered, term of the Order, a Ready for Service Date, recurring charges, any installation or other non-recurring fees, and any discounts or other pricing terms. Within five (5) business days of T-Mobile Request, Provider shall prepare and deliver to T-Mobile an Order

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consistent with the MSA (and the applicable SA or SAs if appropriate) and containing any additional Provider proposed terms and conditions for such new or modified Service(s) not already contained in the MSA or Attachment(s) or, if Provider is unable to provide the Order within five (5) business days, Provider shall promptly notify T-Mobile of the date upon which Provider will deliver the Order, which shall be as soon as reasonably possible.  

(b)

Within five (5) business days of receiving the Order, T-Mobile may either (i) accept the terms and conditions contained in the Order whereupon the Order shall become effective as of the date of T-Mobile’s signature on the Order or (ii) reject the Order and propose modifications.

(c)

If T-Mobile rejects and proposes modifications to an Order, Provider shall use its commercially reasonable best efforts to revise and deliver promptly to T-Mobile a new Order responsive to T-Mobile’s proposed modifications, and the parties shall follow the procedures set out in Section 4.4(a) (New Services) and Section 4.4(b) (New SAs) until T-Mobile either accepts the Order, or rejects the Order and does not propose further modifications.

(d)

To obtain additional or upgraded Services, or additional or upgraded capacity or locations for Service(s) previously ordered by T-Mobile, the Parties shall execute a new Order.

4.6

Acceptance of Services and Deliverables.

4.7

Transition Services.

(a)

Transition. During the Transition Period, Provider shall perform the transition activities and provide the deliverables specified in the Transition Plan, which, if applicable, shall be attached to the relevant SA or Order. If any services, functions or responsibilities not specifically described in the Transition Plan are an inherent, necessary or customary part of the Transition Services or are required for proper performance or provision of the Transition Services in accordance with this Agreement and are typically performed by the Comparator Group, they shall be deemed to be included within the scope of the Transition Services to be delivered for the transition charges, as if such services, functions or responsibilities were specifically described in the Transition Plan. During the Transition Period, T-Mobile will perform those tasks which are designated to be T-Mobile’s responsibility in the Transition Plan; provided, however, that, T-Mobile shall not be obligated to perform any tasks during the Transition Period that are not set forth in such Transition Plan. Unless otherwise agreed, T-Mobile shall not incur any charges, fees or expenses payable to Provider or third parties in connection with the Transition Services to be provided by Provider, other than those charges, fees and expenses specified in an SA or Order and those incurred by T-Mobile in connection with its

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performance of tasks designated in the Transition Plan as T-Mobile’s responsibility. The Transition Plan is to include transformational activities, such as any facility consolidations or relocations, migrations of services to Provider facilities, etc. The Transition Services will at all times be performed in conformance with Best Practices, in a manner that: (i) transitions the Services successfully, on or before the applicable Transition Milestone Date; (ii) when feasible, minimizes T-Mobile’s internal costs with respect to such transition; (iii) establishes communication lines and network connections, Equipment, Software, tapes, records and supplies as necessary for successful transition of the Services; (iv) develops and implements a communication plan, with T-Mobile’s approval, for T-Mobile, its customers and third party contractors; and (v) puts into effect the Service Levels specified for the Services post implementation. 

(b)

Transition Plan. The Transition Plan shall be attached to the relevant SA(s) or Order(s), and shall identify, among other things, (i) the transition activities to be performed by Provider and the significant components and subcomponents of each such activity, (ii) the deliverables to be completed by Provider, (iii) the date(s) by which each such activity or deliverable is to be completed (the “Transition Milestones”), (iv) the contingency or risk mitigation strategies to be employed by Provider in the event of disruption or delay, and (v) any transition responsibilities to be performed or transition resources to be provided by T-Mobile. Thereafter, within __ days after the Effective Date, Provider shall prepare and deliver to T-Mobile for T-Mobile’s review, comment and approval a detailed work plan based on and consistent with the Transition Plan, which shall identify the specific transition activities to be performed by Provider Personnel during the Transition Period. Such detailed work plan shall become a part of the Transition Plan.

(c)

Performance. Provider shall perform the tasks described in the Transition Plan in accordance with the timetable and the Transition Milestones set forth in the Transition Plan. Provider shall provide all cooperation and assistance reasonably required or requested by T-Mobile in connection with T-Mobile’s evaluation or testing of the deliverables set forth in the Transition Plan. Provider shall perform the tasks described in the Transition Plan in a manner that will not (i) unnecessarily disrupt or have an unnecessary adverse impact on the business or operations of T-Mobile, (ii) unnecessarily degrade the Services then being received by T-Mobile, or (iii) unnecessarily disrupt or interfere with the ability of T-Mobile to obtain the full benefit of the Services, except as may be otherwise provided in the Transition Plan. Prior to undertaking any Transition activity, Provider shall discuss with T-Mobile all known T-Mobile-specific material risks and shall not proceed with such activity until T-Mobile is reasonably satisfied with the plans with regard to such risks. Provider shall identify and resolve, with T-Mobile’s reasonable assistance, any problems that may impede or delay the timely completion of each task in the Transition Plan that are Provider’s responsibility and shall use all commercially reasonable efforts to assist T-Mobile with the resolution of any problems that may impede or delay the timely completion of each task in the Transition Plan that are T-Mobile’s responsibility. Provider will have no responsibility for any delay resulting from T-Mobile’s failure to perform any tasks or actions (e.g., testing call flow) it is required to complete in order to meet a Transition Milestone.

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(d)

Reports. Provider shall meet at least weekly with T-Mobile to report on its progress in performing its responsibilities and meeting the timetable set forth in the Transition Plan. Provider also shall provide written reports to T-Mobile at least weekly regarding such matters, and shall provide oral reports more frequently if reasonably requested by T-Mobile. Promptly upon receiving any information indicating that Provider may not perform its responsibilities or meet the timetable set forth in the Transition Plan, Provider shall notify T-Mobile in writing of material delays and shall identify for T-Mobile’s consideration and approval specific measures to address such delay and mitigate the risks associated therewith, which may include: 

(i)

assigning additional resources;

(ii)

replacing ineffective resources;

(iii)

having existing resources work additional hours;

(iv)

deploying new tools to support the work; and

(v)

rearranging the work to overcome constraints.

(e)

Failure to Meet Transition Milestones.

(i)

The Parties acknowledge and agree that the Transition Plan specifies various Transition Milestones by which material Transition activities and/or deliverables are to be completed. If Provider fails to meet a Transition Milestone due to Provider’s fault, it shall be subject to the imposition of the per diem damages specified in the Transition Plan for such Transition Milestone, as liquidated damages to T-Mobile and not as a penalty. The Parties agree that such liquidated damages are a reasonable estimate as of the date of these GTCs of the damages T-Mobile will suffer in the event the respective Transition Milestone is not met. Notwithstanding the foregoing, if T-Mobile terminates this Agreement for cause in accordance with Section 4.7(f) (Termination by T-Mobile for Cause), it shall cease receiving liquidated damages and, subject to Section 19.4 (Payment Obligation), shall be entitled to recover actual damages incurred in connection with such termination to the extent it is able to prove such damages, subject to the applicable liability limitations set forth in Section 19 (Liability).

(ii)

In addition to any liquidated damages provided pursuant to Section 4.7(e)(i), if Provider fails to meet the date specified for any Transition Milestone, Provider shall not be entitled to any further compensation for additional work (e.g., milestone or implementation payments but not Charges related to the consumption of Services) associated with such Transition Milestone after such date that is incurred due to Provider’s failure to meet such Transition Milestone.

(f)

Termination by T-Mobile for Cause. Notwithstanding the foregoing, T-Mobile may terminate this Agreement for cause if Provider’s failure to meet any Transition Milestone constitutes a material breach and Provider fails to cure such breach within fifteen (15)

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days after its receipt of notice. In addition, unless otherwise agreed in writing signed by both Parties, if Provider fails to meet the Transition Milestone for the transition of all Services to Provider by more than ninety (90) days, T-Mobile may terminate the applicable SA for cause without requirement of notice or opportunity to cure. In either event, subject to Section 19.4 (Payment Obligation), T-Mobile may recover the actual damages suffered by T-Mobile in connection with such a termination, subject to the applicable liability limitations set forth in Section 19.2(a). 

(g)

Termination by Provider for Cause. Notwithstanding the foregoing, Provider may terminate the applicable SA for cause if T-Mobile’s failure to meet any Transition Milestone constitutes a material breach and T-Mobile fails to cure such breach within fifteen (15) days after its receipt of notice. In addition, unless otherwise agreed, if T-Mobile fails to meet the Transition Milestone for the transition of all Services to Provider by more than ninety (90) days, Provider may terminate the applicable SA for cause without requirement of notice or opportunity to cure. In either event, Provider may recover the actual damages suffered by Provider in connection with such a termination, subject to the applicable liability limitations set forth in Section 19.2(a).

(h)

Completion and Acceptance of Transition.

(i)

The Transition Plan will not be complete until Provider has successfully completed the tasks described in the Transition Plan and T-Mobile agrees that such tasks have been completed in accordance with the agreed process set forth in such Transition Plan.

(ii)

T-Mobile may extend any dates in, change the order of the implementation in, or vary the completion date of any Transition Plan by giving Provider the number of days advance notice set forth in the applicable SA. Any such extension or change resulting from Provider’s failure to perform the Transition Services in accordance with this Agreement and the Transition Plan (other than (1) a failure caused by a Force Majeure Event, in which case Provider must comply with the applicable disaster recovery or business continuity plans, or (2) a failure by T-Mobile or a T-Mobile Agent to perform a responsibility set forth in the applicable SA as a T-Mobile responsibility) will not affect T-Mobile’s right to Deliverable Credits, if any, or prejudice T-Mobile’s right to seek other remedies for such failure.

(iii)

If (1) T-Mobile extends the completion date by more than the length of time set forth in the applicable SA (unless resulting from Provider’s failure to perform the Transition Services in accordance with the Transition Plan that is not excused pursuant to the previous sentence) or (2) the completion date is delayed by more than the length of time set forth in the applicable SA due to a failure by T-Mobile or a T-Mobile Agent to perform a responsibility set forth in the applicable SA as a T-Mobile responsibility then, subject to Provider’s duty to mitigate such costs, T-Mobile will pay to Provider an amount equal to Provider’s direct and actual costs associated with extending the Transition Services pursuant to this subsection, including any of Provider’s direct, actual and documented costs that would otherwise have been reduced or eliminated if the Transition had occurred as

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scheduled; provided, however, that such incremental costs will not exceed the Charges for “steady-state” Services that would otherwise be payable if the completion date had not been so extended. 

(iv)

If Provider (1) has not successfully completed in all material respects any Transition Phase by the completion date specified in the applicable Transition Plan or (2) fails to meet a Transition Milestone in the Transition Plan, which failure places the completion date of the applicable Transition Phase at risk (in each case, other than a failure caused by a Force Majeure Event, in which case Provider must comply with the applicable disaster recovery or business continuity plans, or a failure by T-Mobile or a T-Mobile Agent to perform a responsibility set forth in the applicable SA as a T-Mobile responsibility, without affecting T-Mobile’s right to Deliverable Credits or prejudicing T-Mobile’s right to seek other remedies, including its right under Section 4.7(f) (Termination by T-Mobile for Cause), T-Mobile may:

(1)

extend the period for such Transition Phase or such Transition Milestone and vary the completion date for such Transition Phase or such Transition Milestone, in which case:

a.

Provider will submit a plan to T-Mobile for its approval which sets out how and when any incomplete parts of such Transition Phase will be completed or such Transition Milestone will be met;

b.

once T-Mobile has approved the plan, Provider will complete such Transition Phase or meet such Transition Milestone in accordance with the plan; and

c.

subject to T-Mobile’s duty to mitigate such costs, Provider will pay or credit to T-Mobile for T-Mobile’s additional direct, actual and documented costs (in excess of the Charges for “steady-state” Services that would have been payable to Provider had the Transition Services been completed by the completion date specified in the Transition Plan) if and as set forth in the applicable SA; or

(2)

notify Provider that T-Mobile accepts such Transition Phase as complete.

4.8

Network Connectivity

(a)

Required Network Connectivity. Provider will at all times be responsible for providing, at its sole expense, network connectivity for the provision of the Services and the Deliverables pursuant to the terms set forth in the applicable SAs and Orders (“Connectivity Facilities”).

(b)

Network Performance Obligations. Provider shall make Connectivity Facilities: (i) at all times during the Term, be in conformance with Best Practices; (ii) be augmented or

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decreased in order to be sufficient to facilitate the performance of the Parties’ obligations with respect to the Services in conformance with the quality, cost and efficiency requirements set forth in this Agreement; and (iii) without limitation to the foregoing, provide failover and redundancy in conformance with Best Practices. The foregoing provision is subject to T-Mobile complying with any request by Provider to augment, decrease or establish additional Connectivity Facilities necessary for Provider to meet its obligations.  

4.9

Governmental Approvals and Consents.

(a)

Provider will, at its own expense, (1) obtain and maintain the Provider Governmental Approvals, and (2) obtain, maintain and comply with the Provider Consents and (3) comply with the T-Mobile Consents the terms of which T-Mobile has given Provider reasonable advance notice.

(b)

T-Mobile will, at its own expense, (1) obtain and maintain the T-Mobile Governmental Approvals, (2) obtain, maintain and comply with the T-Mobile Consents and (3) comply with the T-Mobile Consents for T-Mobile and T-Mobile Agents to access or Use, consistent with the terms of these GTCs or the applicable SA, the Services that Provider provides to T-Mobile.

(c)

Each Party will cooperate with the other Party, as requested by the other Party, in the other Party’s obtaining the Governmental Approvals and the Consents that such other Party is required to obtain pursuant to this Section.

4.10

Knowledge Sharing.

(a)

On request after at least 30 days’ notice from T-Mobile but not more than four times in any Contract Year, Provider will meet with representatives of T-Mobile in order to:

(i)

explain how the Services are provided;

(ii)

if and to the extent necessary or appropriate to enable T-Mobile or T-Mobile Agents to perform T-Mobile’s operational obligations under this Agreement or to provide services that interact with or interface with the Services, explain how the Provider Systems work; and

(iii)

provide such training and documentation as T-Mobile may reasonably require:

(1)

to enable T-Mobile (a) to perform its obligations under these GTCs or the applicable SA(s), (b) to provide services that interact with or interface with the Services, or (c) to use the Services;

(2)

if and to the extent these GTCs or the applicable SA(s) gives T-Mobile rights under Section 4.1(e) (Step-In Rights), to understand and operate the Provider Systems and understand and provide the Services upon exercising any step-in rights under Section 4.1(e) (Step-In Rights).

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(b)

Upon T-Mobile’s request from time to time, Provider will provide to T-Mobile a sufficiently detailed description of the environmental configuration in respect of the Services under an SA, including information regarding Equipment, Software, staffing, operating environment, systems constraints, protocols, interfaces, architecture and other operating parameters to the extent that such description is relevant to T-Mobile’s use of the Services and Deliverables. 

4.11

Quality Control.

4.12

Service Locations.

(a)

Provider Service Locations. Excluding Provider’s headquarters, the Services will be provided to T-Mobile from the Provider Service Locations, if any, specified in each SA and any other location for which Provider has received T-Mobile’s approval, to be given in T-Mobile’s sole discretion. Any incremental expenses incurred by T-Mobile relating to the relocation of any Services to, or the use to perform any Services of, any location other than the locations initially set forth in the applicable SA will be allocated as follows:

(i)

Provider will either pay, or reimburse T-Mobile for, any such expenses in respect of the relocation or use of any location (1) that is a Provider Service Location except as set forth in subsection (ii) of this Section, (2) that is a T-Mobile location if such relocation or use is at the request of Provider or (3) if such relocation or use is at the request of T-Mobile as a result of Provider’s specific failure to perform its obligations in respect of such location in accordance with the applicable SA.

(ii)

Except as contemplated by subsection (i) of this Section, T-Mobile will be responsible for any such expenses in respect of a relocation or use of any location (1) that is a T-Mobile location if such movement or use is at the request of T-Mobile or (2) that is a Provider Service Location if such movement or use is at the request of T-Mobile.

(b)

Physical Safety, Environmental and Security Procedures.

(i)

Provider will maintain and enforce at the Provider Service Locations Provider’s standard physical safety, environmental and security procedures in effect for such Provider Service Location that are at least equal to the higher of (1) those maintained by a tier one service provider and (2) any higher standard agreed upon by the Parties.

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(ii)

Provider will, and will cause each member of the Provider Services Personnel to, comply with all the rules and regulations of a Governmental Authority or established by T-Mobile for access to and activities in and around premises controlled by T-Mobile, including those set forth in Schedule 3 (T-Mobile Policies and Procedures). 

5.

Term

5.1

Term of the GTCs, SAs, and Orders.

5.2

Extensions of Term.

5.3

Termination by T-Mobile.

(a)

T-Mobile Termination Rights. T-Mobile has the following rights of termination:

(i)

T-Mobile may, in its sole discretion, terminate these GTCs or any SA (or Order thereunder), each in whole or in part, upon the occurrence of any uncured Material Breach;

(ii)

T-Mobile may, in its sole discretion, terminate these GTCs or any SA (or Order thereunder), each in whole or in part, in the event of a Provider Material Adverse Change;

(iii)

T-Mobile may terminate these GTCs or any SA (or Order thereunder), each in whole or in part, if any proposed change in applicable Laws has or will have, a material adverse effect on T-Mobile’s use of the Services;

(iv)

In the event of a proposed acquisition, by any entity (the “Acquiring Entity”), of Control of Provider where such Control would be acquired, directly or indirectly, in a single transaction or series of related transactions, or in the event of a proposed acquisition by such Acquiring Entity of all or substantially all of the

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assets of Provider that were previously utilized to provide the Services under one or more of the SAs, Orders or other Schedules, or if Provider proposes to merge with or into another entity to form a new entity (the “New Entity”) Provider will, where feasible given confidentiality restrictions or concerns, notify T-Mobile as soon as possible (including, if possible, in advance of such transaction). If such transaction is with an entity that is a “Direct T-Mobile Competitor” identified as such in an applicable SA or if such transaction results in a material degradation of the Services, then within one (1) year following the date on which the applicable transaction occurred, T-Mobile may terminate these GTCs or any SA (or Order thereunder) by giving Provider at least forty five (45) days prior written notice and designating a date upon which such termination will take effect; for the avoidance of doubt, (A) any such termination will be effective without charge or penalty to T-Mobile, including termination fees, and (B) such prior written notice from T-Mobile may be delivered at any time following notice of the proposed transaction from Provider and the termination by T-Mobile may occur at the conclusion of such forty-five (45) day period thereafter, even if such period expires before consummation of the proposed transaction by Provider; and  

(v)

In accordance with Section 19.3(c) (Force Majeure – Substitute Services; Termination), T-Mobile may terminate these GTCs or any SA (or Order thereunder), each in whole or in part, upon the occurrence of a Force Majeure Event.

(b)

Rights and Remedies for Material Breaches. In the event of a Material Breach, in addition to its right to terminate these GTCs, the SAs and Orders thereunder (but irrespective of whether T-Mobile elects to exercise such rights), T-Mobile will be entitled to all other remedies available to it, at law or in equity, including without limitation, monetary damages and equitable injunctive relief, including specific performance and injunctive relief (including, without limitation, emergency or provisional injunctive relief) under any applicable Laws. However, any monetary damages will be limited to the amounts specified in Section 19.

(c)

Other Orders. In the event that individual Orders under an SA are terminated in accordance with the rights set forth above, all other Orders under such SA (as well as any of the other SAs) that have not been expressly terminated will remain in full force and effect.

(d)

Partial Termination. In the event T-Mobile terminates a portion of the Services by terminating less than all of the Services in accordance with the rights set forth above (a “Partial Termination”), Provider shall continue performing those Services not terminated pursuant to the terms of this Agreement; provided, however, that the Termination Assistance Services shall be similar to those services provided by Provider during the migration of the Services to Provider under this Agreement.

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5.4

Termination by Provider. 

5.5

Cross-Termination.

5.6

Return of Property.

5.7

Fraud Prevention Assistance.

5.8

Termination/Expiration Assistance.

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(a)

Termination Assistance Services. As part of the Services, and for the Charges set forth in Sections 5.3(a)(ii) and (d), Provider shall provide to T-Mobile or T-Mobile’s Designee the Termination Assistance Services described in Section 5.8(b). 

(i)

Period of Provision. Provider shall provide such Termination Assistance Services to T-Mobile (i) commencing upon notice up to six (6) months prior to the expiration of the Term and continuing for up to nine (9) months following the effective date of the expiration of the Term (as such Term may be extended pursuant to Section 5.2), (ii) commencing upon any notice of termination (including notice based upon breach or default by T-Mobile, breach or default by Provider) of the Term with respect to all or any part of the Services, and continuing for up to nine months following the effective date of such termination of all or part of the Services, or (iii) commencing upon notice of termination of all or part of the Services and continuing for up to nine months following the effective date of such termination.

(ii)

Extension of Services. Subject to Section 5.8(iii) (Firm Commitment), T-Mobile may elect, upon thirty (30) days prior notice, to extend the effective date of any expiration/termination of all or part of the Services, in its sole discretion, provided that the total of all such extensions will not exceed twelve (12) months following the originally specified effective date without Provider’s prior written consent. T-Mobile also may elect, upon thirty (30) days prior notice, to extend the period following the effective date of any expiration/termination for the performance of Termination Assistance Services, provided that the period between the effective date and the completion of all Termination Assistance Services is not greater than thirty six (36) months and further provided that, if applicable, the terms of Section 5.8(iii) (Firm Commitment) apply. To the extent T-Mobile requests a portion (but not all) of the Services included in a particular Charge, the amount to be paid by T-Mobile will be equitably adjusted in proportion to the portion of the Services included in the applicable Charge that Provider will not be providing or performing.

(iii)

Firm Commitment. Provider shall provide Termination Assistance Services to T-Mobile regardless of the reason for the expiration or termination of the Term; provided, however, if the Agreement is terminated by Provider under Section (c) (Termination for Cause by Provider) for failure to cure a breach (including for T-Mobile’s uncured payment default as described in such Section), T-Mobile will (i) pay in monthly advance for Termination Assistance Services provided or performed under this Section 5.8 (Termination/Expiration Assistance) and (ii) pay all undisputed amounts owed by T-Mobile under this Agreement.

(iv)

Performance. To the extent T-Mobile requests Termination Assistance Services, such Services shall be provided subject to and in accordance with the terms and conditions of this Agreement. Provider shall perform the Termination Assistance Services with at least the same degree of accuracy, quality, completeness, timeliness, responsiveness and resource efficiency as it provided and was required to provide the same or similar Services during the Term. The quality and level of

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performance of the Services provided by Provider following the expiration or termination of the Term as to all or part of the Services or Provider’s receipt of a notice of termination or non-renewal shall continue to meet or exceed the Service Levels.  

(b)

Scope of Service. As part of the Termination Assistance Services, Provider will timely transfer the control and responsibility for all Services previously performed by or for Provider to T-Mobile and/or T-Mobile’s Designees by the execution of any documents reasonably necessary to effect such transfers. Additionally, Provider shall provide any and all reasonable assistance requested by T-Mobile to allow:

(i)

the Services to continue in accordance with the terms of these GTCs and SAs, including the Service Levels; and

(ii)

the orderly transfer of the Services to T-Mobile and/or its Designee(s).

(c)

The Termination Assistance Services shall include, as requested by T-Mobile, the Services, functions and responsibilities set forth herein. In addition, in connection with such expiration or termination, Provider will provide the following assistance and Services at T-Mobile’s direction:

(i)

General Support. Provider shall (i) provide reasonable assistance to T-Mobile in developing a written transition plan for the transition of the Services from T-Mobile or T-Mobile’s designee, which plan shall include capacity planning, facilities planning, human resources planning, telecommunications planning and other planning necessary to effect the transition, (ii) perform services as reasonably requested by T-Mobile to assist in implementing the transition plan, (iii) provide reasonable assistance in the execution of the migration and testing process until the successful completion of the transition from T-Mobile or T-Mobile’s designee, and (ix) provide other technical assistance as reasonably requested by T-Mobile.

(ii)

Hiring. T-Mobile or T-Mobile’s designee shall be permitted to undertake, without interference from Provider, Provider Subcontractors or Provider Affiliates (including counter-offers), to hire, effective after the later of the termination of the Term or completion of any Termination Assistance Services requested under Section 5.8 (Termination/Expiration Assistance), any Provider Personnel primarily assigned to the performance of Services within the 12-month period prior to the expiration or termination date. Provider shall waive, and shall cause its Affiliates to waive, their rights, if any, under contracts with such personnel restricting the ability of such personnel to be recruited or hired by T-Mobile or its designee. T-Mobile or its designee shall have reasonable access to such Provider Personnel for interviews, evaluations and recruitment. T-Mobile shall endeavor to conduct the above-described hiring activity in a manner that is not unnecessarily disruptive of the performance by Provider of its obligations under this Agreement.

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(iii)

Equipment. Only with respect to specific Equipment identified in an applicable SA that directly references the applicability of this Section 5.8(c)(iii) (Termination/Expiration Assistance – Equipment), T-Mobile or its designee shall have the right (but not the obligation) to purchase, or assume the lease for, any Equipment (and all software associated with such Equipment) owned or leased by Provider that is primarily dedicated by Provider, Provider Subcontractors or Provider Affiliates to perform the Services. Any such identified Equipment shall be transferred in good working condition, reasonable wear and tear excepted, as of the expiration or termination date or the completion of any Services associated with such Equipment requested by T-Mobile under this Section 5.8(c)(iii), whichever is later. Provider shall, at no additional charge to T-Mobile, maintain such Equipment through the date of transfer so as to be eligible for the applicable manufacturer’s maintenance program at no additional charge to T-Mobile. In the case of any such equipment that is owned by Provider, Provider shall grant to T-Mobile a warranty of title and a warranty that such Equipment is free and clear of all liens and encumbrances. Such conveyance by Provider to T-Mobile or its designee shall be at the lesser of fair market value or net book value. At T-Mobile’s request, the Parties shall negotiate in good faith and agree upon the form and structure of the purchase. In the case of leased Equipment, Provider shall (i) represent and warrant that the lessee is not in default under the lease, (ii) represent and warrant that all payments thereunder have been made through the date of transfer, and (iii) notify T-Mobile of any lessor defaults of which it is aware at the time. 

(iv)

Provider Subcontracts and Third Party Contracts. Only with respect to specific Subcontracts or Third Party Contracts explictly identified in an applicable SA or by mutual written agreement of the Parties pursuant to an applicable SA, in each case in a manner that directly references the applicability of this Section 5.8(c)(iv) (Termination/Expiration Assistance – Provider Subcontracts and Third Party Contracts) (each a “Designated Subcontract” or Designated Third Party Contract”), at T-Mobile’s request, Provider shall cause any applicable Subcontractors, Provider Affiliates, or third party contractors associated with such Designated Subcontracts or Designated Third Party Contracts to permit T-Mobile or its Designees to assume prospectively any or all such Designated Subcontracts or Designated Third Party Contracts or to enter into new contracts with T-Mobile or its designees on substantially the same terms and conditions, including price. Provider shall so assign any such Designated Subcontracts and Designated Third Party Contracts to T-Mobile or its Designee as of the expiration or termination date or the completion of any Termination Assistance Services associated with such Designated Subcontracts or Designated Third Party Contracts requested by T-Mobile under Section 5.8(c)(iii), whichever is later. There shall be no charge or fee imposed on T-Mobile by Provider or its Subcontractors, Affiliates or third party contractors for such assignment. Provider shall (i) represent and warrant that it is not in default under such Desiganted Subcontracts and Designated Third Party Contracts, (ii) represent and warrant that all payments thereunder through the date of assignment are current, and (iii) notify T-Mobile of any Subcontractor

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or third party contractors defaults with respect to such Designated Subcontracts and Designated Third Party Contracts of which it is aware at the time. 

(v)

Other Subcontracts and Third Party Contracts. In addition to its obligations under Section 5.8(c)(iv), Provider shall make available to T-Mobile or its designee, pursuant to reasonable terms and conditions, any Subcontractor or third party services then being utilized by Provider in the performance of the Services to the extent Provider is not prevented by Law or contract with such Subcontract or third party from doing so. Provider shall retain the right to utilize any such Subcontractor or third party services in connection with the performance of services for any other Provider customer.

(d)

Rates and Charges. Except as provided in Section 5.8(a)(ii), if T-Mobile requests that Provider provide or perform Termination Assistance Services in accordance with this Agreement, T-Mobile shall pay Provider the rates and charges specified in Schedule 4 (Termination Assistance) for the additional Provider Personnel or resources required to perform such Termination Assistance Services. To the extent rates and charges for such Provider Personnel or resources are not specified in Schedule 4 (Termination Assistance), T-Mobile shall pay Provider a negotiated fee, which shall not exceed Provider’s [* * *]. To the extent the Termination Assistance Services requested by T-Mobile can be provided by Provider using personnel and resources already assigned to T-Mobile, there will be no additional charge to T-Mobile for such Termination Assistance Services. If the Termination Assistance Services requested by T-Mobile cannot be provided by Provider using personnel and resources already assigned to T-Mobile, T-Mobile, in its sole discretion, may forego or delay any work activities or temporarily or permanently adjust the work to be performed by Provider, the schedules associated therewith or the Service Levels to permit the performance of such Termination Assistance Services using such personnel or resources.

6.

Charges

6.1

General.

6.2

Reimbursable Expenses.

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6.3

Taxes.

(a)

Income and Certain Property Taxes. Except as specifically provided in Section 6.3(b) (Transaction Taxes), Provider shall be solely responsible for, and shall indemnify, defend and hold T-Mobile harmless from and against, any and all taxes imposed by taxing authorities with respect to the Services and Deliverables provided under these GTCs and any associated SAs and Orders, including without limitation, taxes based on, measured by, or calculated with respect to, Provider’s income, profits or gross receipts, franchise, doing business, capital, intangible, net worth or similar taxes or taxes in lieu thereof, and taxes or contributions required under employment, payroll, unemployment insurance, social security, income tax and other Laws, whether collected by withholding or otherwise, including interest and penalties thereon and additions thereto, and for all interest, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) and any other liabilities of any nature whatsoever related hereto with respect to any failure by Provider to meet its obligations under this paragraph. If T-Mobile purchases any Equipment from Provider pursuant to the terms of these GTCs or those of an SA or Order, personal property taxes on such Equipment will be prorated based on the number of days in the applicable tax period and paid on or before the date that the next installment for such tax is due, with Provider paying the taxes allocable to the period before the date T-Mobile purchases the Equipment and T-Mobile paying the taxes allocable to the period on and after such date.

(b)

Transaction Taxes. Provider shall be solely responsible for any sales, use, excise, value-added, services, consumption and other taxes and duties payable on any goods or services used or consumed by Provider in providing the Services, or that are otherwise imposed on any costs or expenses (other than Pass-Through Expenses) incurred in order to provide the Services and Deliverables (collectively, “Transaction Taxes”). However, T-Mobile shall be responsible for any taxes that are assessed on T-Mobile’s receipt or use of the Services or Deliverables, or upon Pass-Through Expenses. Each Party shall indemnify, defend and hold the other Party harmless from and against any and all charges, claims, causes of action, penalties, costs (including, without limitation, reasonable attorneys’ fees) and any other liabilities of any nature whatsoever related hereto with respect to any failure by such Party to meet its respective obligations under this paragraph.

(c)

Surcharges. With respect to any purchase of Services hereunder, if any federal or state law or regulation imposes a duty, assessment, or fee on the Services, provider, or purchaser that specifically requires or permits the collection of such duty, assessment or fee from provider, purchaser (such as T-Mobile) or a carrier’s end users or is a Universal Service Fee assessment (“Surcharge”), then (to the extent that T-Mobile does not provide a valid exemption to such Surcharge): (a) Provider shall ▇▇▇▇, as a separately stated item,

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T-Mobile for such Surcharge; (b) T-Mobile shall timely remit such Surcharge to Provider; and (c) Provider shall timely remit such collected Surcharge to the applicable governmental authority as required by applicable Law. Provider may only pass through a Surcharge to the extent that the Surcharge is also imposed on similarly situated customers. Provider shall indemnify, defend and hold T-Mobile harmless from and against any and all charges, claims, causes of action, penalties, costs (including, without limitation, reasonable attorneys’ fees) and any other liabilities of any nature whatsoever related hereto with respect to any failure by Provider to meet its obligations under this paragraph. 

(d)

Efforts to Minimize Taxes. The Parties shall cooperate in taking all reasonable actions necessary to minimize, or to qualify for exemptions from, any applicable taxes, Surcharges, duties, tariffs or liabilities, including without limitation the furnishing of certifications that purchases by T-Mobile are for purposes of resale, if applicable. The Parties shall cooperate fully with each other to enable each to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible. Provider’s invoices shall separately state the Charges that are subject to taxation and the amount of taxes included therein. Each Party will provide and make available to the other any resale certificates, information regarding out-of-state or out-of-country sales or use of equipment, materials, or services, and other exemption certificates or information reasonably requested by either Party. At T-Mobile’s request, Provider shall provide T-Mobile with written evidence of Provider’s filing of all required tax forms and returns required in connection with any Service Taxes collected from T-Mobile, and its collection and remittance of all applicable Service Taxes. Notwithstanding the foregoing, T-Mobile will be entitled to deduct and withhold from amounts payable to Provider pursuant to an SA or Order such amount of taxes as it is required to deduct and withhold under applicable Law. All amounts so withheld by T-Mobile will be treated as paid to Provider for purposes of such SA or Order.

(e)

Tax Audits or Proceedings. Each Party will promptly notify the other of, and coordinate with the other, the response to and settlement of, any claim for taxes asserted by applicable taxing authorities for which the other Party is responsible hereunder. With respect to any claim arising out of a form or return signed by a Party to this Agreement, such Party will have the right to elect to control the response to and settlement of the claim, but the other Party will have all rights to participate in the responses and settlements that are appropriate to its potential responsibilities or liabilities. Each Party also shall have the right to challenge the imposition of taxes for which it is financially responsible under this Agreement or, if necessary, to direct the other Party to challenge the imposition of such taxes. If either Party requests the other to challenge the imposition of any tax, the requesting Party will reimburse the other for all fines, penalties, interest, additions to taxes (penalty in notice) or similar liabilities imposed in connection therewith, plus the reasonable legal fees and expenses it incurs. A Party shall be entitled to any tax refunds or rebates granted to the extent such refunds or rebates are of taxes that were paid by it.

(f)

Tax Filings. Each Party represents, warrants and covenants that it will file appropriate tax returns, and pay applicable taxes owed arising from or related to the provision of the

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Services in applicable jurisdictions. Provider represents, warrants and covenants that it is registered to and will collect and remit Service Taxes in all applicable jurisdictions. 

6.4

Charges for New Services.

(a)

Provider Proposals. Provider will propose the following types of Charges for the New Services (which proposal will be made at no Charge to T-Mobile):

(i)

To the extent that a Pricing Schedule in any of the SAs provides rates for the resources contemplated for the New Services, Provider will propose Charges for the New Services based upon the methodology provided in such Pricing Schedule, provided that the rates for such resources will be adjusted as required for conformance with Provider’s obligations under Section 8.1 (Most-Favored Customer);

(ii)

If no rates (including per minute usage rates) are provided for such resources in a Pricing Schedule of any of the SAs, then Provider will quote a proposed Charge for the New Services that is no more than Provider’s charges to any of its other customers for substantially similar and quantity of services, including other relevant terms that relate to pricing such as volume commitments and time commitments, in conformance with its obligations under Section 8.1 (Most-Favored Customer).

(b)

Alternative Bids. T-Mobile may elect to solicit and receive bids from third parties to perform such New Services and Provider will undertake commercially reasonable efforts to cooperate with T-Mobile in the preparation of such bids. If T-Mobile elects such third party services, then to the extent necessary for Provider to cooperate with the third parties in order for T-Mobile to use the New Services, Provider will cooperate with those third parties with respect to the provision of such New Services, provided that such third parties enter into confidentiality agreements, containing confidentiality provisions substantially similar to those contained in Section 9 (Safeguarding of Data; Confidentiality), with Provider.

(c)

Exclusions. The Parties anticipate that the Services will evolve and be supplemented, modified, enhanced or replaced over time to keep pace with technological advancements and improvements in the methods of delivering services, by implementation of Best Practices and otherwise, and the Parties acknowledge that these will not be deemed to result in New Services.

(d)

Service Level for New Services. Except as otherwise agreed in writing by the Parties, New Services will be provided in accordance with mutually agreed upon Service Levels that are no less than those applicable to similar Services.

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6.5

Extraordinary Events.  

(a)

Provider and T-Mobile shall mutually determine on a reasonable basis the efficiencies, economies, savings and resource utilization reductions resulting from such Extraordinary Event and, upon T-Mobile’s approval, Provider shall then proceed to implement such efficiencies, economies, savings and resource reductions as quickly as practical and in accordance with the agreed upon schedule. As the efficiencies, economies, savings or resource utilization reductions are realized, the Charges shall be promptly and equitably adjusted to pass through to T-Mobile the full benefit of such efficiencies, economies, savings and resource reductions; provided, however, that T-Mobile shall reimburse Provider for any net costs or expenses incurred to realize such efficiencies, economies, savings or resource utilization reductions if and to the extent Provider (i) notifies T-Mobile of such additional costs and obtains T-Mobile’s approval prior to incurring such costs, (ii) uses commercially reasonable efforts to identify and consider practical alternatives, and reasonably determines that there is no other practical way to obtain such savings without incurring such expenses, and (iii) uses commercially reasonable efforts to minimize the additional costs to be reimbursed by T-Mobile.

(b)

An Extraordinary Event shall not result in Charges to T-Mobile being higher than such Charges would have been absent the Extraordinary Event unless and to the extent such Extraordinary Event results in New Services (e.g., T-Mobile requires that Provider create a new infrastructure to support an acquired Entity). T-Mobile may, at its sole option, elect at any time to forego its rights under this Section 6.5 (Extraordinary Events) and instead apply the then current Charges.

(c)

The Parties shall implement any reduction in pricing pursuant to this Section 6.5 (Extraordinary Events) in accordance with the procedures set forth in Section 11.3 (Service Change Procedures).

7.

Invoicing and Payment

7.1

General.

7.2

Invoicing.

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(a)

if Provider submits an Erroneous Invoice during a Penalty Period for an amount of Ten Thousand Dollars ($10,000), in which the correct amount to be Charged to T-Mobile was Eight Thousand Dollars ($8,000), then Provider will deduct an amount equaling [* * *] from the amount due in the correct invoice, such that the amount Charged to T-Mobile under the correct invoice shall be [* * *]; and

(b)

if Provider submits an Erroneous Invoice during a Penalty Period which includes total Charges of Ten Thousand Dollars ($10,000), and for which the correct Charge should have been Eleven Thousand Dollars ($11,000), then the [* * *] that Provider failed to include in such Erroneous Invoice [* * *] shall be deemed to be waived by Provider.

7.3

Payment Due.

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7.4

Accountability. 

7.5

Proration.

7.6

Set-Off.

7.7

Disputed Charges.

8.

Most-Favored Customer; Benchmarking; Continuous Improvement and Best Practices

8.1

Most-Favored Customer.

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