OPERATING AGREEMENT
-------------------
THIS OPERATING AGREEMENT (the "Agreement") is dated as of the 31st day
of January, 2000 by and between AT&T Wireless Services, Inc., on behalf of
itself and its Affiliates listed in Schedule 1 hereto (individually and
collectively, "AWS") and ACC Acquisition LLC, on behalf of itself and its
Affiliates listed in Schedule 2 hereto (individually and collectively,
"ACC"). AWS and ACC are sometimes referred to, individually, as a "Party"
and together as "Parties."
R E C I T A L
-------------
WHEREAS, each of AWS and ACC desires to make arrangements to facilitate
the provision of voice and voice-related mobile wireless radiotelephone
service to its Customers through the wireless radiotelephone facilities of
the other Party in a manner providing a common look and feel and the
appearance of seamlessness between the Parties' facilities, in accordance
with the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein set forth and intending to be legally bound hereby, the
Parties do hereby agree as follows:
ARTICLE I.
DEFINITIONS
-----------
As used in this Agreement, the terms below shall have the following
meanings:
ACC has the meaning set forth in the first paragraph of this Agreement.
ACC SERVICE AREA means the geographic area in which ACC and those of its
Affiliates now or hereafter listed on Schedule 2 provide Service.
ACC SYSTEM means the facilities owned and/or operated by ACC with
which it provides Service anywhere within the ACC Service Area.
ACC TDMA SYSTEM means that portion of the ACC System located in the
markets listed on Exhibit A.
ADDITIONAL FEATURES means the Features that are offered by AWS to
their Customers in their Home Service Areas and are adopted by ACC pursuant
to Section 10.3.3. Once implemented, an Additional Feature shall be deemed a
Core Feature for purposes of this Agreement.
-1-
ADOPTED FEATURES means the Core Features, the Future Core Features and
the Additional Features.
AFFILIATE means, with respect to a Party, any facilities-based CMRS
operating company that (a) is controlled by or under common control with the
Party, (b) is an entity in which the Party has at least fifty percent (50%)
voting interest, (c) shares switching facilities with the Party, (d) is
managed by the Party, or (e) is providing Service utilizing CMRS spectrum it
has acquired from a Party; provided, that AWS and ▇▇▇▇▇▇ Communications
Corporation and their respective Affiliates shall be deemed not to be
Affiliates of ACC for purposes of this Agreement.
APPROVED CIBERNET NEGATIVE FILE GUIDELINES means the negative file
guidelines appearing in the CIBER Record in effect from time to time.
AT&T WIRELESS means AT&T Wireless Services, Inc., individually.
AUTHORIZED RECEIPT POINT or ARP means the location or address of the
Party designated by the Home Carrier as the delivery point for its CIBER
records and authorized agent for performing CIBER edits.
AUTHORIZED ROAMER means a Roamer using equipment and an assigned
telephone number with the NPA/NXX combinations listed in accordance with
Article VI below for whom the Serving Carrier has not received a negative
notification in accordance with the provisions of this Agreement.
AWS has the meaning set forth in the first paragraph of this Agreement.
AWS SYSTEM means the facilities owned and/or operated by AWS with
which it provides Service anywhere within the United States.
BTA means a geographic area designated by the FCC as a Basic Trading
Area in which a PCS System may be operated, as described more specifically in
47 CFR 24.202 of the FCC rules and regulations.
CELLULAR SYSTEM means a wireless communication system that is operated
pursuant to authority granted by the FCC under 47 CFR Part 22.
CIBER means Cellular Intercarrier Billing Exchange Record.
CIBER RECORD means the publication prepared by CIBERNET Corporation, a
wholly-owned subsidiary of the Cellular Telecommunications Industry
Association, as a service to the wireless communications industry. Unless
specifically provided otherwise in this Agreement, all words and phrases
defined in the CIBER Record shall have the meaning herein that they have
therein.
CLEARINGHOUSE means that entity which provides for the exchange of
CIBER records and performs industry accepted CIBER edits, including edits to
verify Industry Negative File information.
-2-
CMRS means any Commercial Mobile Radio Service as authorized by the
FCC.
CORE FEATURES means the Features that, as of the Effective Date, AWS
and ACC have agreed to implement and maintain in order to create a common
look and feel and seamless subscriber service between the AWS System and the
ACC System, as evidenced by their listing in Schedule E-1 to Exhibit E
attached hereto.
CUSTOMER means an end-user of Service with which a Party has entered
into an agreement to provide such Service, regardless of whether such Service
is to be provided through the facilities of such Party.
DEFAULT has the meaning set forth in Section 13.1.
EFFECTIVE DATE means the Closing Date under the Agreement and Plan of
Merger dated as of October 5, 1999 among ACC Acquisition LLC, ACC Acquisition
Co. and American Cellular Corporation.
ESN means the Electronic Serial Number that is encoded in a wireless
telephone set by the manufacturer and which is broadcast by such telephone.
EQUIPMENT means phones, handsets, transmitters, terminals, control
equipment and switches and other hardware and software required or useful to
use Service, including phones and handsets Customers use in connection with
Service.
FCC means the Federal Communications Commission and any successor
agency or authority.
FEATURES means voice and voice-related features and services available
from a Party through its mobile wireless telecommunication system.
FUTURE CORE FEATURES means the Features that are agreed upon in the
future by the Parties pursuant to Section 10.3.2 as necessary to maintain a
common look and feel, and seamless subscriber service, between the AWS System
and the ACC System, and which the Parties agree will be supported by both of
their Systems, on the terms and conditions of this Agreement, in the same
manner as the Core Features. Once implemented, a Future Core Feature shall
be deemed a Core Feature for purposes of this Agreement.
GENERAL AVAILABILITY means the date upon which the technology and
products that comprise any Future Core Features are commercially available at
a commercially reasonable price from the vendors of such technology and
product(s), and such Feature has successfully completed and passed the first
application in the System of the Party seeking to implement such features and
is ready for live commercial deployment.
HOME CARRIER means a Party who is providing Service to its registered
Customers (it being understood that for purposes of this Agreement AWS shall
be deemed to be the Home Carrier for its registered Customers residing in the
ACC Service Area).
-3-
HOME SERVICE AREA means the geographic area in which a Home Carrier is
licensed to provide Service.
INDUSTRY NEGATIVE FILE means the negative file maintained by the
authorized Clearinghouses in accordance with approved CIBERNET Negative File
Guidelines.
MIN means the "Mobile Identification Number" which is assigned by a
Home Carrier to each of its registered Customers.
MSA means a geographic area designated by the FCC as a Metropolitan
Service Area in which a Cellular System may be operated, as described more
specifically in 47 CFR 22.909 of the FCC rules and regulations.
MTA means a geographic area designated by the FCC as a Major Trading
Area in which a PCS System may be operated, as described more specifically in
47 CFR 24.202 of the FCC rules and regulations.
NPA/NXX COMBINATIONS means the six-digit numerical combinations
assigned by regulatory authorities to identify the area code and telephone
number prefix for Service.
PCS SYSTEM means a wireless communication system that is operated
pursuant to authority granted by the FCC under 47 CFR Part 24.
PARTIES and PARTY have the meanings set forth in the first paragraph
of this Agreement.
ROAMER means a Customer of one Party who seeks Service from the other
Party within the geographic area served by the other Party, regardless of
whether Service also is offered in that area by the Party whose Customer is
seeking Service.
RSA means a geographic area designated by the FCC as a Rural Service
Area in which a Cellular System may be operated, as described more
specifically in 47 CFR 22.909 of the FCC rules and regulations.
SERVICE means telecommunications service for the transmission and
reception of voice and voice-related features provided by means of radio
frequencies that are or may be licensed, permitted or authorized now or in
the future by the FCC for use by a Cellular System or a PCS System, and in
respect of which service the user equipment is capable of and intended for
usage during routine movement, including halts at unspecified points, at more
than one location throughout a wide area public or private wireless network.
Unless otherwise specifically agreed by the Parties, Service shall include
personal base station services but, by way of example and without limitation,
does not include fixed wireless services, two-way messaging wireless services
(NBPCS), video broadcasting wireless services, television services (whether
cable, broadcast or direct broadcast satellite), broadcast radio services,
interactive informational or transactional content services such as on-line
content network services, Internet based services, satellite based
communications services, and air to ground communications services.
-4-
SERVING CARRIER means a Party who provides Service for registered
Customers of another Party while such Customers are in the geographic area
where the Serving Carrier, directly or through subsidiaries, provides Service.
SYSTEM means the AWS System or the ACC System, and SYSTEMS means the
AWS System and the ACC System.
TDMA means the present and future North American Time Division
Multiple Access standard which is set by the Telecommunications Industry
Association (which at the Effective Date is IS-136), which is the essential
radio frequency technical method for digital wireless telephone operations
upon which the Service and equipment related thereto are designed to operate.
USER INTERFACE means the process, functional commands, and look and
feel by which a Customer operates and utilizes the Adopted Features,
including the sequence and detail of specific commands or service codes, the
detailed operation and response of Equipment to the sequence of keys pressed
to effect subscriber Equipment functions, and the response of subscriber
Equipment to the activation of these keys, or in response to signals or data
from either the ACC System or the AWS System. Furthermore and for greater
certainty, such definition shall include without limitation, the manner in
which information is displayed on the screen of a phone used for Adopted
Features, announcement tones or messages occur, and service or feature codes
that must be dialed. The origins of the information presented to the user
may be the user Equipment, or the AWS System or the ACC System, or both.
ARTICLE II.
PROVISION OF SERVICE
--------------------
2.1 Each Party shall provide, to any Authorized Roamer who so
requests, in accordance with its own ordinary requirements, restrictions,
practices, and tariffs, if applicable, and with the terms and conditions of
this Agreement, any and all types of Service that such Party provides to its
own Customers within its Service Area. At a minimum, such Service shall
include voice communications capability, as well as any other types of
Service required by this Agreement, including without limitation Article X
hereof.
2.2 Notwithstanding anything in this Agreement to the contrary, a
Serving Carrier may suspend or terminate Service to an Authorized Roamer in
accordance with the terms of its own ordinary requirements, restrictions,
practices, and tariffs, if any, but such suspension or termination shall not
affect the rights and obligations of the Parties for Service furnished
hereunder prior to such termination or suspension.
2.3 In connection with its Service to Roamers, no Serving Carrier
shall use recorded announcements or other inducements for an Authorized
Roamer to discontinue the Service of its Home Carrier or, unless otherwise
authorized herein, Roamer's use of a Serving Carrier's system.
-5-
2.4 In the event that an operating entity becomes an Affiliate of a
Party after the date of this Agreement, such Party may, upon thirty (30) days
prior written notice to the other Party, add such operating entity to
Schedule 1 or Schedule 2, as the case may be, at the expiration of which
thirty-day period, in which event (a) the Customers of such entity shall be
entitled to Service as Roamers from the other Party on the terms and
conditions of this Agreement and (b) such operating entity shall provide
Service to Customers of the other Party who are Authorized Roamers, although
the other Party is not obligated to request such Service or to require its
Customers to request such Service. Notwithstanding the foregoing, the other
Party, in its reasonable discretion, may specify, by delivering written
notice thereof prior to the expiration of the thirty day period, that any
Affiliate so added shall not be entitled to preference as a Serving Carrier
as otherwise provided in Section 2.5. Upon the addition to or deletion from
Schedule 1 or 2 of any operating entity pursuant to this Section 2.4,
Exhibits A and B shall automatically be revised accordingly, except that
either Party may, in its sole discretion, specify that an addition by either
Party to Schedule 1 or 2 shall not be given effect for any or all purposes of
Section 2.5.
2.5
2.5.1 AWS, in its capacity as Home Carrier, shall cause
substantially all of its Customers, when roaming in the markets operated by
ACC that are listed on Exhibit A, to normally seek Service as Roamers from
ACC prior to seeking Service from any other carrier. ACC, in its capacity as
Home Carrier, shall cause substantially all of its Customers, when roaming in
the markets operated by AWS that are listed on Exhibit B, to normally seek
Service as Roamers from AWS prior to seeking Service from any other carrier.
2.5.2 As a condition to the right of a Party under Section
2.5.1 to be the preferred provider of Service to Customers of the other
Party, the market being served by the Serving Carrier shall (i) have fully
installed a TDMA-based system, including all Core Features, (ii) be fully
interoperable in accordance with Sections 10.6, 10.7, and 10.8, and (iii)
otherwise have met, and be in compliance with, all terms and conditions of
this Agreement.
2.6 ACC shall join and remain a member of the North American
Cellular Network throughout the term of this Agreement.
2.7 Notwithstanding anything in this Agreement to the contrary, ACC
acknowledges that AWS has the right to market, offer and sell, to Customers
residing in the ACC Service Area, AT&T branded or co-branded
telecommunications services that are offered nationally, including providing
local numbers and service to such Customers, subject to the provisions of
Section 2.5.1, Article V and the other provisions of this Agreement.
ARTICLE III.
RELATED SERVICES
----------------
3.1 Upon request by ACC, AWS and ACC shall consider implementing a
common System Identification Number (SID) for markets operated by the respective
Parties in the same
-6-
general vicinity or taking other steps to suppress the roaming indicator on a
Customer's handset from lighting to indicate that the Customer is roaming in
such markets, but each Party may, in its sole discretion, decide whether to
implement such measure.
3.2 So long as interexchange services are offered to ACC and those
of its Affiliates listed in Schedule 2 by AT&T Corp. or one of its Affiliates
on terms that are reasonably competitive with those available through other
sources, ACC and its Affiliates listed in Schedule 2 shall not market, offer,
provide, or resell interexchange services, except (i) such services offered
by AT&T Corp. or its Affiliate or (ii) services provided exclusively within a
single home service area designated as such by ACC in its marketing
materials. All relevant factors shall be considered in determining the
competitiveness of interexchange services, including rates, volume
commitments, duration, and other terms. At anytime when ACC believes that it
can obtain such interexchange services from another source(s) at better terms
than those being offered to ACC by AT&T Corp. or one of its Affiliates, ACC
may solicit competing offers. If such offer is made which ACC believes is
better, and the relevant rates are at least 5% less than those charged to ACC
by AT&T Corp. or one of it's Affiliates, ACC shall provide AWS with a written
term sheet which specifies the relevant rates, volume commitments, duration
and other material terms of the competing offer ("Offer Notice"). AT&T Corp.
or one of its Affiliates shall have thirty (30) days after receipt of the
Offer Notice by AWS to offer to ACC the comparable interexchange service(s)
upon the same or better terms as specified in the Offer Notice. If AT&T
Corp. or one of its Affiliates make such an offer to ACC, ACC agrees to
contract with AT&T Corp. or one of its Affiliates for any of such services
acquired by ACC. If no such offer is made by AT&T Corp. or one of its
Affiliates within the required time period, then ACC may accept the competing
offer. Any claim or dispute over the interpretation or implementation of
this paragraph shall be resolved under the provisions of paragraph 13.2 of
this Agreement.
3.3 AWS and ACC agree that ACC shall participate in AWS's National
Account Program ("NAP") on substantially the terms of AWS's standard NAP
agreement, a copy of which has been provided to ACC. Promptly following the
execution of this Agreement, AWS and ACC shall negotiate in good faith the
final terms of such agreement, with the goal of executing the agreement by
May 1, 2000.
3.4 Each Party, within the geographic areas in which such Party
provides Service, will provide Service without any additional toll charge
throughout an area (a so-called "home calling area") that is of a size at
least reasonably comparable to the area within which toll-free calls placed
through facilities that are exclusively land-based are available.
ARTICLE IV.
CUSTOMER SERVICE
----------------
4.1 The Parties shall use commercially reasonable efforts to
develop and implement systems enabling each Party, as Serving Carrier, to
route to a Customer's Home Carrier any 611 customer service call received
from a Customer of the other Party while roaming on the Serving Carrier's
System.
-7-
ARTICLE V.
CHARGES
-------
Each Home Carrier, whose Customers (including the Customers of its
resellers) receive service from a Serving Carrier as Authorized Roamers under
this Agreement, shall pay to the Serving Carrier who provided such service
100% of the Serving Carrier's charges for CMRS and one hundred percent (100%)
of the toll charges pursuant to Exhibit C. The amount of the charges for the
use of each Serving Carrier's Service are set forth in Exhibit C attached to
this Agreement.
ARTICLE VI.
EXCHANGE OF INFORMATION
-----------------------
6.1 The Parties shall furnish to each other, in the format of
Exhibit D to this Agreement, the valid NPA/NXX combinations used by their
respective Customers. These combinations shall be accepted by the other
Party. Each NPA/NXX combination is and shall be within the entire line range
(0000-9999), or a specified portion thereof. The minimum line range to be
exchanged by the Parties shall be 1,000 line numbers. Each Party shall be
responsible for all ▇▇▇▇▇▇▇▇ otherwise properly made under this Agreement to
any number listed by such Party within the range or ranges specified by it in
Exhibit D. Additions, deletions, or changes to NPA/NXX combinations and line
number range(s) for the Home Carrier's Customers may be made upon at least
fifteen (15) days prior written notice to the Serving Carrier. Such notice
shall be in the form attached as Exhibit D to this Agreement and shall
include the requested effective date for the addition, deletion or change.
6.2 [Reserved]
6.3 Each Party hereby agrees to indemnify the other Party, together
with its partners and any and all of their officers, directors, employees,
agents and/or affiliates, against, and hold them harmless from, any and all
claims, suits, demands, losses and expenses, including reasonable attorneys'
fees and disbursements, which may result in any way whatsoever from the
indemnified Party's denial of Roamer or local Service to any NPA/NXX
combination which has been listed by the indemnifying Party as not being
authorized to receive Service; provided that (i) the person seeking
indemnification (the "Indemnified Person") provides notice of such claim
promptly after its discovery to the Party from which indemnification is
sought (the "Indemnifying Person") and in any event the Indemnifying Person
will be released from any obligation hereunder to the extent it is prejudiced
by any delay in the delivery of such notice, (ii) the Indemnifying Person
shall have the right to assume the defense of such claim, (iii) the
Indemnified Person shall provide such reasonable assistance and cooperation
in the defense of such claim as is requested by the Indemnifying Person, and
(iv) the Indemnified Person shall not settle or compromise any such claim
without the prior written consent of the Indemnifying Person.
-8-
6.4 [Reserved]
6.5 Upon the implementation of wireless number portability in any
portion of either the AWS System or the ACC System, the Parties shall
cooperate in establishing an alternative method for exchanging ESN and/or
NPA/NXX information required to permit roaming by the other Party's Customers
in their respective systems.
ARTICLE VII.
FRAUD
-----
7.1 The Parties will cooperate and, as necessary, supplement this
Agreement in order to minimize fraudulent or other unauthorized use of their
systems. If any Party reasonably decides that, in its sole judgment, despite
due diligence and cooperation pursuant to the preceding sentence, fraudulent
or other unauthorized use has reached an unacceptable level of financial loss
and is not readily remediable, such Party may suspend the use of applicable
NPA/NXX combinations, in whole or in part, pursuant to the terms of this
Agreement.
7.2 Each Party shall take reasonable actions to control fraudulent
Roamer usage, including without limitation using either (i) a positive
validation/verification ("PV") system provided by a mutually agreed upon
validation/verification service under which the ESN and/or NPA/NXX used in a
call in the Serving Carrier's system is compared against a list of Authorized
Roamers or (ii) SS-7 connections through a network of carriers. The Parties
shall work together in good faith to designate and implement a system as
specified in the preceding sentence and enhancements thereto or alternative
systems as they shall agree in the future. The Home Carrier shall have no
responsibility or liability for calls completed by a Serving Carrier without
obtaining positive validation/verification as required herein.
7.3 In addition to other procedures set forth in this Agreement, a
Home Carrier may notify a Serving Carrier by facsimile, with written
confirmation, that certain NPA/NXX combinations are not to receive Service.
Any calls completed using such NPA/NXX combinations made one full business
day or more after such notice has been given shall be the sole responsibility
of the Serving Carrier, and the Home Carrier shall not be charged any amount
for such calls.
7.4 Each Serving Carrier shall use commercially reasonable efforts
to provide each Home Carrier with real-time visibility of call detail records
delivered through a network compatible with AWS's network. Such information
shall be delivered within one hour of the applicable call. In the event that
the Serving Carrier provides such a real-time visibility system, the Serving
Carrier shall not be liable in any event for a temporary failure of the
system unless the Serving Carrier has been notified of such failure by the
Home Carrier and the Serving Carrier does not take commercially reasonable
steps to remedy the failure. If the Serving Carrier has been so notified and
has failed to take such commercially reasonable steps, the Serving Carrier
shall be liable for all unauthorized usage attributed to Home Carrier's
subscribers during the
-9-
period from the time Serving Carrier was notified of the problem to the time
that the problem has been resolved to the reasonable satisfaction of the Home
Carrier.
7.5 For purposes of notification under this Article VII, the
following addresses and facsimile numbers shall be used:
If to AWS: AT&T Wireless Services, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Billing and ICS Operations
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
If to ACC: ACC Acquisition LLC
c/▇ ▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Tel. No. (405) ___-____
Fax No. (405) ___-____
Each Party may change the names, addresses and numbers set forth above
by providing notice to the other Party as provided in Article XVI below.
ARTICLE VIII.
BILLING
-------
8.1 Each Home Carrier shall be responsible for billing to, and
collecting from, its own Customers all charges that are incurred by such
Customers as a result of service provided to them as Authorized Roamers by
the Serving Carrier. The Home Carrier shall also be responsible for billing
its Customers for, and remitting to, the Federal Government all federal
excise tax that may be due in connection with the service being billed by it
to its Customers. While the Serving Carrier will be responsible for the
computation and remittance of all state and local taxes, each Home Carrier
shall be liable to the Serving Carrier for all such state and local taxes
remitted by the Serving Carrier, for Authorized Roamers regardless of whether
these amounts are paid to the Home Carrier by its Customers.
8.2 Each Serving Carrier who provides Service to an Authorized
Roamer pursuant to this Agreement shall forward Roamer billing information,
within five business days of the call date, in accordance with the procedures
and standards set forth in the CIBER Record to the Home Carrier's Authorized
Receipt Point. CIBER Type 50 and CIBER Type 70 records shall not be accepted
without mutual signed agreement and if such mutual agreement is reached it
will be attached to this Agreement. Any future revisions of the CIBER Record
or additional record types
-10-
must be mutually agreed upon before implementation. In the event the parties
use the CIBERNET Net Settlement Program, or alternative settlement program
such information must be in a format in compliance with the CIBER Record
requirements or agreed upon format.
8.3 Where the Authorized Roamer billing information required to be
provided by the Serving Carrier in accordance with Section 8.2 above is not
in accordance with the CIBER Record, the Home Carrier may return a record to
the Serving Carrier as provided in the CIBER Record. Returning the defective
record will be in accordance with CIBER Record established procedures. The
Serving Carrier may correct the defective record and return it to the Home
Carrier for billing, provided that the time period from the date of the
Service call at issue to the receipt of the corrected record does not exceed
sixty (60) days.
8.4 No credit for insufficient data or defective records shall be
permitted except as provided in Section 8.3 above, unless mutually agreed
upon by both Parties.
8.5 Each Home Carrier may at its discretion perform any necessary
edits at its Clearinghouse on incollect or outcollect call records to ensure
compliance with the terms of this Agreement.
ARTICLE IX.
SETTLEMENT
----------
9.1 Each Party will settle its accounts with the other Parties on
the basis of billing information received as described in this Article IX.
In the event both Parties use a net financial settlement procedure, the
Parties shall not submit a paper invoice but will make payments in accordance
with such net financial settlement procedures provided that the Parties may
submit call records for payment that relate to calls made more than sixty
(60) days from the date of the call if such call was the subject of a dispute
or investigation regarding fraudulent or unauthorized use.
9.2 If an incorrect roaming rate is charged by the Serving Carrier
to the Home Carrier, the Serving Carrier shall refund all amounts in excess
of the contract rate back to the Home Carrier within forty five days of
notification by the Home Carrier. Each carrier shall have ninety (90) days
from the end of the settlement period to invoice for amounts in excess of the
contract rate. The Home Carrier will send a collection letter within sixty
(60) days of the invoice date, within ninety (90) days of the invoice date,
and within one hundred (120) days of the invoice date. If the invoice remains
unpaid after one hundred twenty (120) days from the original invoice date,
the Home Carrier may withhold the amounts from the CIBERNET Net Settlement
Program or alternative settlement program.
9.3 In the event that either Party does not use a net financial
settlement procedure, the billing and payment for charges incurred under this
Agreement shall be as set forth below.
-11-
9.3.1 The parties shall determine amounts owed to each other
for Service provided to Roamers in one-month periods with such period
beginning on the sixteenth day of each calendar month and ending on the
fifteenth day of the following month in which Service is provided. The end
of this Period shall be referred to as "Close of Billing."
9.3.2 The Parties shall send each other an invoice for
Services used under this Agreement within fifteen (15) days after the Close
of Billing.
9.3.3 Each invoice shall contain the following information.
a. Billing period used by Serving Carrier
b. Batch sequence number
c. Serving and Home Carrier System
Identification Number
d. Air Service charges
e. Total toll charges (both intrastate and
interstate)
f. All other charges and credits
g. Total taxes
h. Total charges
9.3.4 Payment on such invoices shall be made in the form of a
check or a wire transfer which must be received by the invoicing party within
thirty (30) days from the date of the invoice. Late payments shall be
charged with a late payment fee of one and one half percent (1.5%) of the
outstanding balance for each thirty-day period (or portion thereof) that such
payments are late.
9.3.5 Each Party may offset the amount owed to the other Party
under this Agreement and a single payment of the balance to the Party
entitled to receive such balance shall be made.
9.4 If the Serving Carrier provides pre-call validation of the Home
Carrier's Customers, the Home Carrier agrees to implement Negative File
Suppression at the Clearinghouse and the CIBERNET Negative File Guidelines
and procedures do not apply.
ARTICLE X.
INTEROPERABILITY
----------------
10.1 The Parties agree that their respective obligations under this
Agreement related to the interoperability of the AWS System and the ACC TDMA
System shall be construed in accordance with the following general principles:
10.1.1 The Parties agree, confirm and acknowledge that one of
their primary objectives in entering into this Agreement is to promote the
establishment and operation throughout the United States of a mobile wireless
service that is TDMA-based and that will appear to their respective
subscribers as a single mobile wireless network with a common User
-12-
Interface pertaining to the Adopted Features, and that they intend to achieve
such purpose and objective as set forth in, and subject to the terms and
conditions of, this Agreement. Adopted Features shall be made available to
all Customers of a Party when roaming in the AWS System or the ACC TDMA
System, subject to the terms of this Agreement. Each Party shall use good
faith efforts, when implementing any software or other System change or
upgrade, to confirm the continued availability of the Feature
interoperability provided for herein, and in the event of any interference
with any Feature interoperability shall work expeditiously to restore
required functionality. Without limiting the generality of the foregoing, in
the event the Authentication Fraud Protection Feature (or any subsequent or
comparable fraud protection Feature) is disabled or affected by any network
change so as to interfere with its interoperability, the Party responsible
for such network shall restore interoperability within 48 hours of
notification from the affected Party.
10.1.2 The Parties agree that each of their respective
obligations, duties, rights and entitlements pursuant to this Agreement shall
be interpreted, to the extent such interpretation is required to resolve any
dispute or uncertainty concerning this Agreement, in a manner that is
reasonably consistent with, and which reasonably supports, the purpose and
objective of this Agreement as set out in Section 10.1.1.
10.1.3 The Parties agree that they each shall, in good faith,
work together, cooperate, and use the rights that they each have granted the
other under this Agreement for the purposes set out in Section 10.1.1 and on
the terms and conditions of this Agreement.
10.1.4 Any entity listed on Schedule 1 but in which AT&T
Wireless owns, directly or indirectly, less than a majority interest or which
AT&T Wireless otherwise does not control shall, at the option of AT&T
Wireless, not be subject to the requirements of this Article X.
10.2 The Parties agree to implement TDMA-based systems as follows:
10.2.1 The Parties each acknowledge and confirm that their
digital standard for, in the case of AWS, the AWS System and, in the case of
ACC, the ACC TDMA System, is currently (as of the Effective Date) TDMA. In
addition, ACC shall maintain its commitment to TDMA as ACC's digital standard
for the ACC TDMA System on Exhibit A for so long as, and to the extent that,
AWS maintains its commitment to TDMA as AWS's digital standard. AWS agrees
that in the event it may exercise its discretion to no longer remain
committed to TDMA as its digital standard, it shall inform ACC of that
decision by no later than six months prior to the implementation of any
non-compatible interface. Upon the implementation of any such non-compatible
interface, the following Sections of this Agreement shall immediately
terminate: Sections 10.1.1, 10.2.2, and 10.2.3.
10.2.2 ACC shall deploy TDMA throughout the ACC TDMA System
within twelve (12) months after the date of this Agreement. ACC shall use
commercially reasonable efforts to promote the use of TDMA-based
communications devices among its Customers who roam on the AWS System.
-13-
10.3 Each of the Parties agrees that it shall operate and support
its TDMA-based System, to the extent installed, to ensure that the other
Party's Customers can use the Adopted Features when roaming on the Serving
Carrier's TDMA-based System in the same manner that such Customers use such
Adopted Features on the Home Carrier's TDMA-based System.
10.3.1 CORE FEATURES. Each Party shall, at its own expense,
implement the Core Features in the AWS System, in the case of AWS, and in the
ACC TDMA System, in the case of ACC, as soon as reasonably practicable and in
any event within one (1) year after the Effective Date. Thereafter, Core
Features shall be implemented at the time any TDMA-based system is placed
into operation.
10.3.2 FUTURE CORE FEATURES. The Future Core Features shall be
those features that are agreed upon by the Parties from time to time after
the execution of this Agreement. Each Party shall, at its own expense,
implement such Future Core Features within one (1) year after the General
Availability of such Future Core Features, provided that, and subject to such
Party's determination, in its sole and absolute discretion, that such
implementation is both financially feasible and economically viable, and
consistent with such Party's objective of maximizing its financial
performance. In the event that a Party opts not to adopt a Future Core
Feature in accordance with this Section 10.3.1, it shall promptly notify the
other Party of that decision. Future Core Features shall be implemented in
accordance with this Section in the areas specified for each respective Party
in Section 10.3.1.
10.3.3 ADDITIONAL FEATURES. In addition to the Core Features
and the Future Core Features, ACC shall offer, at the request of AWS,
additional service features that AWS notifies ACC that AWS will provide in a
majority of its TDMA Systems, unless the Management Committee reasonably
determines that providing such additional features would be financially
detrimental to ACC. Absent such determination, any such additional features
shall be adopted within 120 days (or such longer period as is reasonably
necessary under the circumstances) after the request by AWS. ACC agrees that
in order to offer certain Additional Features it will be obligated to
implement technological enhancements, upgrades, improvements and advances
("Improvements") that are implemented by AWS from time to time (e.g., EDGE
technology) and that are technologically compatible with ACC's equipment. At
the request of AWS, ACC will implement any Improvements that AWS notifies ACC
that AWS will implement in a majority of its TDMA Systems, unless the
Management Committee reasonably determines that the implementation of any
such Improvement would be financially detrimental to ACC. Absent such
determination, any such improvements shall be implemented within 120 days (or
such longer period as is reasonably necessary under the circumstances) after
the request by AWS. A course of action will be considered "financially
detrimental" to ACC for purposes of this Section 10.3.3 if the reasonable
business case for such course of action has a net present value that is less
than or equal to negative 10% of the capital cost of that course of action.
10.3.4 The Parties shall use commercially reasonable efforts to
comply with the network performance standards with respect to the Adopted
Features that are set out in Schedule E-2 to Exhibit E attached hereto.
-14-
10.4 Neither Party shall provide the other Party's Customers with
Service inferior in quality to that provided to its own Customers. Each
Party shall provide Service to Customers of the other Party of a quality
level, based on criteria customarily used to evaluate the performance of
wireless voice systems, comparable to or exceeding industry norms. Any
assessment of "quality" shall be with reference to the System's performance
as a whole within a specific MSA, RSA, or BTA, as the case may be, and shall
be over such a period of time as reasonably necessary to yield an accurate
depiction of System "quality" taking into account all of the variables which
may affect System performance.
10.5 In order to facilitate performance by each of the Parties of
their obligations under this Article X, the Parties agree to exchange and
share information with each other as follows, except that nothing contained
herein shall be construed to require a Party to exchange information that the
Party considers confidential or proprietary.
10.5.1 Subject to Article XVII of this Agreement, the Parties
shall provide each other, on a reasonably prompt basis, with all information
and materials that either has a right to disclose that is necessary to meet
the interoperability standards set forth in this Article X, including without
limitation the following information:
System Engineering:
- Minimum Standards for Systems
Features:
- Capability description of present Core Features and other
Features
- User Interface (codes)
- Implementation procedures
- Roaming requirements
- Feature functionality design documents
Research and Development:
- operational test results
- operational defects and bugs
- remedial/back-up plans
- operational, functional and technical specifications
- all related documentation
- systems integration
10.5.2 Each Party agrees that it shall, in performing its
obligations to provide the other Party with information in accordance with
Section 10.5, act reasonably, and in good faith toward the other Party.
-15-
10.5.3 Nothing contained herein is intended or should be
construed to constitute the transfer or grant by one Party to the other of
any ownership, license, or other rights of or to any trade secret, know-how,
or other intellectual property by one Party to the other.
10.6 Each Party shall provide for automatic call delivery for
Customers of the other Party who are Roamers in such Party's system. To this
end, each Party shall continuously provide the hardware, software and
transmission facilities required for such call delivery either directly
between the systems of the Parties or indirectly through a separate network
of wireless communications carriers. The hardware, software and transmission
facilities provided by each Party hereunder shall at all times be operated
and maintained to provide the most efficient level of service that is
technically feasible and commercially reasonable to minimize transmission
errors and Service interruptions.
10.7 If the Parties have implemented linking facilities as
contemplated in Section 10.8, the Serving Carrier shall automatically
hand-off to the Home Carrier, and as requested shall automatically accept
hand-off from the Home Carrier in order to provide Service as specified in
Article II, calls to or from a Customer of the Home Carrier in accordance
with the hand-off procedures established for such linking facilities. To
this end, each Party shall continuously provide the hardware, software and
transmission facilities required for such call hand-off either directly
between the systems of such Home and Serving Carrier or indirectly through a
separate network of wireless communications carriers. The hardware, software
and transmission facilities provided by each Party hereunder shall at all
times be operated and maintained to provide the most efficient level of
service that is technically feasible and commercially reasonable to minimize
transmission errors and Service interruption.
10.8 The Parties will work together to evaluate the economic
advantage of various switch linking options to interconnect and facilitate
networking of the Parties' respective Systems as required by this Agreement.
Should the Parties agree to install and maintain linking facilities, the cost
of the linking facilities shall be allocated pursuant to the following
provisions:
10.8.1 AWS and ACC will each pay one-half of the equipment
costs for the establishment of microwave facilities to link the Parties'
respective Systems for the purposes of automatic call delivery and automatic
call hand-off. Each Party is solely responsible for the costs of preparing
its own facilities for the System link.
10.8.2 Equipment costs for the establishment of a landline link
(T-1) to link the Parties' respective Systems together for these purposes
shall be split between the Parties as follows:
(a) AWS and ACC shall each pay one-half of the cost
for the installation, use, modification, or discontinuance of the linking
facilities. Each party is solely responsible for all costs to prepare its
own facilities for the link between the Systems.
(b) For ease of administration, AWS will order and be
the customer of record ("COR") for such facilities. ACC will reimburse AWS
monthly for its share of the
-16-
recurring costs of such facilities. The COR shall be responsible for
invoicing the other Party for its share of the costs, with payment due within
30 days of receipt of the invoice.
10.8.3 The Parties agree that this Section 10.8 relates only to
those costs necessary to establish the referenced facilities. This section
is not applicable to the allocation of costs with respect to the provision of
service for each Party's Customers.
10.9 The Parties agree that the revenues and costs for a call belong
to the Party whose System operates the originating cell site (the "▇▇▇▇ and
Keep System").
ARTICLE XI.
REPRESENTATIONS AND WARRANTIES
------------------------------
11.1 AWS hereby represents and warrants to ACC that:
11.1.1 AT&T Wireless is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware. AT&T
Wireless has all requisite power and authority to execute and deliver this
Agreement and to cause this Agreement to be the binding obligation, to the
extent provided herein, of those of its Affiliates listed on Schedule 1 or
added to Schedule 1 hereafter in accordance with Section 2.4.
11.1.2 This Agreement is the legal, valid, and binding
obligation of AT&T Wireless, enforceable against AT&T Wireless in accordance
with its terms, except that such enforceability may be subject to (a)
bankruptcy, insolvency, reorganization, moratorium, or other similar laws now
or hereafter in effect relating to creditors' rights generally and (b)
equitable principles of law and the discretion of any court or arbitral body
before which any related proceeding may be brought.
11.1.3 The execution, delivery, and performance of this
Agreement by AT&T Wireless does not and will not conflict with or result in a
material default, suspension, or termination of any agreement, contract,
obligation, license, or authorization with or granted by any third party or
governmental body.
11.2 ACC hereby represents and warrants to AWS that:
11.2.1 ACC is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of
Delaware. ACC has all requisite power and authority to execute and deliver
this Agreement and to cause this Agreement to be the binding obligation, to
the extent provided herein, of those of its Affiliates listed on Schedule 2
or added to Schedule 2 hereafter in accordance with Section 2.4.
11.2.2 This Agreement is the legal, valid, and binding
obligation of ACC, enforceable against ACC in accordance with its terms,
except that such enforceability may be subject to (a) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or
-17-
hereafter in effect relating to creditors' rights generally and (b) equitable
principles of law and the discretion of any court or arbitral body before
which any related proceeding may be brought.
11.2.3 The execution, delivery, and performance of this
Agreement by ACC does not and will not conflict with or result in a material
default, suspension, or termination of any agreement, contract, obligation,
license, or authorization with or granted by any third party or governmental
body.
ARTICLE XII.
TERM, TERMINATION AND SUSPENSION OF AGREEMENT
---------------------------------------------
12.1 This Agreement shall have a term commencing on the Effective
Date and continuing for a period of twenty (20) years; PROVIDED, that the
provisions of Section 2.5 shall terminate on the earlier of (i) the fifth
anniversary of the Effective Date and (ii) termination of the roaming
preference obligations of AWS under Section 8.2(a) of the LLC Agreement.
Thereafter, this Agreement shall continue in force on a month-to-month basis
unless either party terminates the Agreement by written notice to the other
party given at least 90 days prior to the date of termination. Otherwise,
this Agreement may be terminated or suspended only as provided in this
Article XII.
12.2 This Agreement may be terminated or suspended by either Party
immediately upon written notice to the other of a Default (as defined in
Section 13.1) by the other Party. In addition, either Party may suspend this
Agreement immediately upon written notice to the other Party pursuant to
Section 13.1.1 of the existence of a breach of this Agreement, whether or not
such breach constitutes a Default, which materially affects the Service being
provided to Customers of the non-breaching Party. While any suspension of
this Agreement, whether in part or in whole, is in effect, the obligations of
the Parties shall be only those that survive termination and to work together
to resolve as expeditiously as possible any difficulty that resulted in a
suspension. At such time as the Party originally giving notice of suspension
concludes that the problem causing the suspension has been resolved, that
Party shall give to the other written notice to this effect. This Agreement
shall resume in full effect within five (5) business days after the Parties
have mutually agreed that the problem has been resolved.
12.3 The Parties shall cooperate to limit the extent and effect of
any suspension of this Agreement to what is reasonably required to address
only the cause of such suspension.
12.4 In the event that a Party transfers control of an Affiliate
listed in Schedule 1 or Schedule 2, as the case may be, the Party shall
provide at least four months' prior written notice to the other Party and
upon such transfer such Affiliate shall be deleted from the appropriate
Schedule, but doing so will not relieve a Party of its obligations under
Section 14.1.
12.5 The termination or suspension of this Agreement shall not
affect the rights and liabilities of the Parties under this Agreement with
respect to all Authorized Roamer charges incurred prior to the effective date
of such termination or suspension.
-18-
ARTICLE XIII.
DEFAULT
-------
13.1 A Party will be in "Default" under this Agreement upon the
occurrence of any of the following events:
13.1.1 Material breach of any material term of this Agreement,
if such breach shall continue for thirty (30) days after receipt of written
notice thereof from the nonbreaching Party;
13.1.2 Voluntary liquidation or dissolution or the approval by
the management, board of directors, stockholders, or owners of a Party of any
plan or arrangement for the voluntary liquidation or dissolution of the Party;
13.1.3 A final order by the FCC revoking or denying renewal of
CMRS licenses or permits granted to such Party which, individually or in the
aggregate, are material to the business of such Party; or
13.1.4 Such Party (i) filing pursuant to a statute of the
United States or of any state, a petition for bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee for all or a
portion of such Party's property, (ii) has filed against it, pursuant to a
statute of the United States or of any state, a petition for bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or
trustee for all or a portion of such Party's property, provided that within
120 days after the filing of any such petition such Party fails to obtain a
discharge thereof, or (iii) making an assignment for the benefit of creditors
or petitioning for, or voluntarily entering into, an arrangement of similar
nature, and provided that such filing, petition, or appointment is still
continuing.
13.2 All claims and disputes relating in any way to the performance,
interpretation, validity, or breach of this Agreement, including but not
limited to a claim based on or arising from an alleged tort, shall be
resolved as provided in this Section 13.2. It is the intent of the Parties
that any disagreements be resolved amicably to the greatest extent possible.
13.2.1 If a disagreement cannot be resolved by the
representatives of the Parties with day-to-day responsibility for this
Agreement, such matter shall be referred to an executive officer of each of
the Parties. The executive officers shall conduct face-to-face negotiations
at a neutral location or such other location as shall be mutually agreed
upon. If these representatives are unable to resolve the dispute within ten
business days after either Party requests the involvement of the executive
officers, then either Party may, but is not required to, refer the matter to
mediation or arbitration, as applicable in accordance with Sections 13.2.2
and 13.2.3.
13.2.2 In any case where the amount claimed or at issue is One
Million Dollars ($1,000,000) or more and the Parties are unsuccessful in
resolving the disagreement, the Parties agree to submit the disagreement to
non-binding mediation upon written notification by either
-19-
Party. The Parties shall mutually select an independent mediator experienced
in telecommunications system disputes. The specific format for the mediation
shall be left to the discretion of the mediator. If mediation does not
result in resolution of the disagreement within thirty days of the initial
request for mediation, then either Party may, but is not required to, refer
the matter to arbitration.
13.2.3 Any disagreement not finally resolved in accordance with
the foregoing provisions of this Section 13.2 shall, upon written notice by
either Party to the other, be resolved by final and binding arbitration.
Subject to this Section 13.2.3, such arbitration shall be conducted through,
and in accordance with the rules of, JAMS/Endispute. A single neutral
arbitrator shall decide all disputes. Each Party shall bear its own expenses
with respect to the arbitration, except that the costs of arbitration
proceeding itself, including the fees and expenses of the arbitrator, shall
be shared equally by the Parties. The arbitration shall take place in a
neutral location selected by the arbitrator. The arbitrator may permit
discovery to the full extent permitted by the Federal Rules of Civil
Procedure or to such lesser extent as the arbitrator determines is
reasonable. The arbitrator shall be bound by and strictly enforce the terms
of this Agreement. The arbitrator shall make a good faith effort to apply
applicable law, but an arbitration decision and award shall not be subject to
review because of errors of law. The arbitrator shall have the sole
authority to resolve issues of the arbitrability of any disagreement,
including the applicability or running of any applicable statute of
limitation. The arbitrator shall not have power to award damages in
connection with any dispute in excess of actual compensatory damages nor to
award punitive damages nor any damages that are excluded under this Agreement
and each party irrevocably waives any claim thereto. The award of any
arbitration shall be final, conclusive and binding on the Parties. Judgment
on the award may be entered in any court having jurisdiction over the Party
against which the award was made. Nothing contained in this Section 13.2.3
shall be deemed to prevent either party from seeking any interim equitable
relief, such as a preliminary injunction or temporary restraining order,
pending the results of the arbitration. The United States Arbitration Act
and feeral arbitration law shall govern the interpretation, enforcement, and
proceedings pursuant to the arbitration clause in this Agreement.
ARTICLE XIV.
SUCCESSORS AND ASSIGNS
----------------------
14.1 Neither Party may, directly or indirectly, sell, assign,
transfer, or convey its interest in this Agreement or any of its rights or
obligations hereunder, including any assignment or transfer occurring by
operation of law, without the written consent of both Parties, except that
(i) either Party may assign or delegate this Agreement or any of its rights
or obligations hereunder to an Affiliate of such Party without the consent of
the other Party, but such assignment or delegation will not relieve the Party
of any of its obligations hereunder and (ii) a Party may assign its rights
and obligations hereunder to an assignee of its Service license or permit
issued by the FCC, provided that such assignee expressly assumes, by written
instrument approved in writing by the other Party, all of the obligations of
such Party hereunder and thereby
-20-
becomes a Party hereunder. In no event will an assignment permitted under
this Section 14.1 without the consent of the other Party obligate a Serving
Carrier to provide Service to Customers of the assignee or any of its
Affiliates other than Customers residing in the area in which the assignor
previously was licensed to provide Service.
14.2 No person other than a Party to this Agreement or an
Indemnified Person shall acquire any rights hereunder as a third-party
beneficiary or otherwise by virtue of this Agreement.
ARTICLE XV.
NO PARTNERSHIP OR AGENCY RELATIONSHIP IS CREATED
------------------------------------------------
Nothing contained in this Agreement shall constitute the Parties as
partners with one another or render any Party liable for any debts or
obligations of any other Party, nor shall any Party hereby be constituted the
agent of the other Party.
ARTICLE XVI.
NOTICES AND AUTHORIZED REPRESENTATIVES
--------------------------------------
Unless otherwise provided herein, any notice, request, instruction or
other document to be given hereunder by any Party to the other shall be in
writing and delivered by hand delivery, certified mail (postage prepaid,
return receipt requested), facsimile, or overnight air delivery service, as
follows:
If to AWS, to: AT&T Wireless Services, Inc.
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Intercarrier Services
with a copy to: AT&T Wireless Services, Inc.
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Legal Department
If to ACC to: ACC Acquisition LLC
c/▇ ▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
-21-
with a copy to: ▇▇▇▇▇▇ Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
or such other address as any Party may from time to time furnish to the other
Party by a notice given in accordance with the terms of this Section. All
such notices and communications shall be deemed to have been duly given at
the time delivered by hand, if personally delivered; three business days
after being deposited in the mail, if mailed; when receipt is confirmed, if
by facsimile and received by 3:00 p.m. local time on any business day and
otherwise on the next business day; and the next business day if sent by
overnight air delivery service.
ARTICLE XVII.
CONFIDENTIALITY
---------------
17.1 Each Party shall, and shall cause each of its Affiliates and
each of its and their employees, agents, and contractors, to keep
confidential and not use for any purpose except as contemplated by this
Agreement, any and all information and know-how provided to it by the other
Party which is identified in writing as confidential ("Confidential
Information"). Identification of information as confidential shall, in the
case of information delivered in tangible form, appear on at least the face
or first page of such information and, in the case of information
communicated verbally, be given verbally contemporaneously with the delivery
of the information and confirmed in writing within five business days
thereafter. Notwithstanding the foregoing, the following information shall
be treated as Confidential Information without any further identification as
such: (i) The terms, but not including the mere existence, of this Agreement;
and (ii) all information exchanged pursuant to Article VI.
17.2 Notwithstanding Section 17.1, a Party shall have no obligation
to keep confidential any information that (a) was rightly in the receiving
Party's possession before receipt from the disclosing Party, (b) is or
becomes a matter of public knowledge without violation of this Agreement by
the receiving Party, (c) is rightfully received by the receiving Party from a
third party rightfully in possession of and, to the best of the receiving
Party's knowledge, with a right to make an unrestricted disclosure of such
information, (d) is disclosed by the disclosing Party to a third party
without imposing a duty of confidentiality on the third party, or (e) is
independently developed by the receiving Party without the use of any
Confidential Information. In addition, a Party may disclose any Confidential
Information to the extent required by applicable law or regulation or by
order of a court or governmental agency; provided, that prior to disclosure
the Party shall use all reasonable efforts to notify the other Party of such
pending disclosure and shall provide any reasonable assistance requested by
the other Party to maintain the confidentiality of the information.
17.3 The Parties agree that a Party will not have an adequate remedy
at law in the event of a disclosure or threatened disclosure of Confidential
Information in violation of this Article XVII. Accordingly, in such event,
in addition to any other remedies available at law or in equity,
-22-
a Party shall be entitled to specific enforcement of this Article XVII and to
other injunctive and equitable remedies against such breach without the posting
of any bond.
17.4 The obligations under this Article XVII shall survive the
termination of this Agreement for a period of three years.
ARTICLE XVIII.
MISCELLANEOUS
-------------
18.1 The Parties agree to comply with, conform to, and abide by all
applicable and valid laws, regulations, rules and orders of all governmental
agencies and authorities, and agree that this Agreement is subject to such
laws, regulations, rules and orders. All references in this Agreement to
such laws, regulations, rules and orders include any successor provision. If
any amendment to or replacement of the same materially alters the benefits,
rights, and duties of the Parties hereunder, the Parties agree to negotiate
in good faith an amendment to this Agreement to restore the respective
positions of the Parties to substantially the same point as existed prior to
such amendment or replacement.
18.2 The Parties agree to use their respective best, diligent, and
good faith efforts to fulfill all of their obligations under this Agreement.
The Parties recognize, however, that to effectuate all the purposes of this
Agreement, it may be necessary either to enter into future agreements or to
amend this Agreement, or both. In that event, the Parties agree to negotiate
with each other in good faith.
18.3 This Agreement constitutes the full and complete agreement of
the Parties with respect to the subject matter hereof. Any prior agreements
among the Parties with respect to this subject matter, are hereby superseded.
This Agreement may not be amended, except by the written consent of the
Parties. Waiver of any breach of any provision of the Agreement must be in
writing signed by the Party waiving such breach or provision and such waiver
shall not be deemed to be a waiver of any preceding or succeeding breach of
the same or any other provision. The failure of a Party to insist upon
strict performance of any provision of this Agreement or any obligation under
this Agreement shall not be a waiver of such Party's right to demand strict
compliance therewith in the future.
18.4 The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision thereof.
18.5 This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same Agreement.
18.6 This Agreement shall be construed in accordance with the
internal laws of the State of Delaware without reference to the choice of law
principles, except as subject to the United States Arbitration Act and the
Federal Communications Act.
-23-
18.7 Except for claims by third parties which fall within the scope
of a Party's indemnification obligations under Section 6.3, neither Party
shall be liable to the other Party for any special, indirect, consequential,
or punitive damages.
18.8 The Parties agree that they will not use the name, service
marks or trademarks of the other party or any of its Affiliates in any
advertising, publicity releases or sales presentations, without such Party's
written consent. Neither Party is licensed hereunder to conduct business
under any logo, trademark, service or trade name (or any derivative thereof)
of the other Party.
18.9 No Party shall make any public statement or issue any press
release concerning the terms of this Agreement except as necessary to comply
with requirements of any law, regulation, or the order or judgment of a court
or tribunal of competent jurisdiction. If any such public statement or
release is so required, and AWS and ACC mutually agree to such statement or
release, the Party making such disclosure shall consult with the other Party
prior to making such statement or release and the Party shall use all
reasonable efforts, act in good faith, to agree upon a text for such
statement or release which is satisfactory to AWS and ACC. Nothing contained
herein is intended to limit the ability of the Parties to make statements
regarding the availability to such Party's Customers of the Services to be
provided hereunder by the other Party or that such other Party is the
provider of such Services.
18.10 Neither of the Parties will be liable for nonperformance or
defective performance of its obligations under this Agreement to the extent
and for such periods of time as such nonperformance or defective performance
is due to reasons outside such Party's control, including, without
limitation, acts of God, war, acts of any governmental authority, riots,
revolutions, fire, floods, explosions, sabotage, nuclear incidents,
lightning, weather, earthquakes, storms, sinkholes, epidemics, strikes, or
delays of suppliers or subcontractors for the same causes. Neither Party
shall be required to settle any labor dispute or other third party dispute in
any manner which is deemed by that Party to be less than totally
advantageous, in that Party's sole discretion.
18.11 Except as specifically provided herein, this Agreement is a
non-exclusive arrangement between the Parties and nothing contained in this
Agreement is intended or should be construed to preclude or limit a Party
from obtaining from or providing to a third party Service of a type available
or required to be provided under this Agreement.
-24-
EXECUTED as of the date first written above.
AT&T WIRELESS SERVICES, INC. ACC ACQUISITION LLC
By: /s/ ▇▇▇ ▇▇▇▇▇ By: AT&T Wireless Services JV
--------------------------
Name: ▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President - Carrier Relations Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Date: Title: VP
------------------------ ------------------------
Date:
-------------------------
By: ▇▇▇▇▇▇ ▇▇ Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
------------------------
Date: January 31, 2000
-------------------------
-25-
