CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. ASTERISK * DENOTES SUCH OMISSIONS.
AGREEMENT FOR ENHANCED
DIRECTORY ASSISTANCE SERVICES
THIS AGREEMENT, is made by and between Metro One Telecommunications,
Inc. ("Metro One") and AT&T Wireless Services, Inc., on behalf of certain of its
operating affiliates, as listed in Exhibit A, as may be amended from time to
time and any Licensed Carrier, as defined in Section 9(a) below (individually
and collectively referred to as "Mobile Carrier"), and is made as of this
__2nd___ day of __May__________________, 1997, (the "Agreement"). (Mobile
Carrier and Metro One are sometimes referred to individually as a "Party" or
jointly as "Parties").
WHEREAS, Mobile Carrier is licensed to provide Commercial Mobile
Radio Service in the Calling Area; and
WHEREAS, Metro One operates a business which includes, in part, the
provision of enhanced directory assistance services, as defined below; and
WHEREAS, Metro One wishes to provide such enhanced directory assistance
services to Mobile Carrier and its mobile telephone customers in the Calling
Area;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is mutually acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS
a. CALLING AREA means, according to its context, the collection
of geographic Call Origination Areas and/or Call Completion
Areas set forth in Exhibit A or any individual geographic area
set forth in Exhibit A, as may be amended under the terms of
Section 8 below.
b. CALL ORIGINATION AREA means the Calling Area from which
Subscriber calls may originate.
c. CALL COMPLETION AREA means the Calling Area to which
Subscriber calls may be completed. For purposes of this
Agreement, all Call Completion Areas within the United States
are hereby preapproved by Metro One with respect to any and
all Mobile Carriers.
d. CHANGE shall have the meaning set forth in Section 2(h) below.
e. CLAIM shall have the meaning set forth in Section 15(a) below.
- -------------
1-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
f. SYSTEM means Metro One's proprietary system developed to
enable it to perform EDA services. The System uses business,
residential, government and other data and databases,
including on-line national database systems access and backup
connections to certain databases provided by local exchange
carriers.
g. CONFIDENTIAL INFORMATION means all information, not generally
known to the public, that relates to the business, technology,
programs, systems, subscribers, customers, finances, plans,
proposals or practices of the Parties to this Agreement, and
it includes (without limitation) information relating to call
destination, duration, or other call-related information, the
identities of all Subscribers, customers and prospects, all
business plans and proposals, all marketing plans and
proposals, all technical plans and proposals, all research and
development, all budgets and projections, all non-public
financial information, all information designated as
"confidential," and all trade secrets or other information and
matters not generally known to the public. In using the term
"Confidential Information" the provisions of this paragraph
shall apply to every form in which information shall exist,
whether written, film, tape, computer disk or other form of
media.
Notwithstanding the foregoing, Confidential Information shall
not include any information that: a) is or becomes publicly
available other than by unauthorized disclosure hereunder; b)
was previously known to the Receiving Party, as reasonably
documented by such Receiving Party, free of any similar
restrictions; c) is received from a third Party without
similar restrictions and without breach of this Agreement; d)
is independently developed by a Party at any time; e) is
disclosed to third Parties by the Furnishing Party without
similar restrictions; or f) is approved for release by written
authorization of the Furnishing Party.
h. EDA NUMBERS shall have the meaning set forth in Section 5(c)
below.
i. ENHANCED DIRECTORY ASSISTANCE ("EDA") SERVICES means the
live-Operator enhanced directory assistance services provided
by Metro One to Mobile Carrier and its Subscribers pursuant to
this Agreement. EDA includes, but is not necessarily limited
to (i) call completion (termination) by outpulsing to Mobile
Carrier's directed network the digits of the
Subscriber-requested number; (ii) provision of name, address,
and telephone number when requested and when legally available
through Metro One's System, and (iii) any other EDA product
features agreed upon between Metro One and Mobile Carrier and
listed in Exhibit C.
j. LATA means local access and transport area.
2-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
k. LEC means the local exchange carrier or competitive local
exchange carrier providing service in the Call Completion
Area.
l. MARKET means the area served by the Metro One call center
listed in Exhibit D.
m. MARKS shall have the meaning set forth in Section 12 below.
n. MOBILE CARRIER'S SYSTEM means the communications network of
Mobile Carrier.
o. MTSO means Mobile Carrier's Mobile Telephone Switching Office.
p. OPERATORS means the live operators utilized by Metro One in
providing EDA Services to Subscribers.
q. SUBSCRIBER (OR CUSTOMER) means any person or entity to whom
Mobile Carrier provides wireless services.
r. TOTAL CALL VOLUME shall have the meaning set forth in Section
9(b) below.
s. TRIAL PERIOD shall mean the period during which EDA services
shall be made available to a selected group of Subscribers or
Mobile Carrier employees pursuant to Section 10 of this
Agreement.
2. EDA SERVICES PROVIDED BY METRO ONE
EDA Services shall be provided by Metro One as set forth below:
a. BEST EFFORTS. Metro One's operators shall use their best
efforts to answer all calls made to the Metro One's EDA
Number(s).
b. EDA SERVICES. Metro One's operators will provide EDA services,
provided that EDA services or parts thereof (e.g. connection
to certain numbers or areas) are not expressly prohibited by
Mobile Carrier. In the event that the completion of the call
requires the transport of the call across a LATA such that the
services of an interexchange carrier is required, Metro One
shall route the call using the services of the Subscriber's
presubscribed wireless interexchange carrier * * *
c. HOURS OF OPERATION. Metro One shall staff the EDA lines 24
hours a day, 7 days a week, 365 days a year (or 366 days a
year as the case may be), with a sufficient number of
Operators to perform the services required hereunder.
3-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
d. ANSWER STANDARD. Metro One shall, except as provided in
Section 22 ("Force Majeure") below, provide sufficient
operators and equipment to ensure that at least 80% of the
calls within a calendar month within each Calling Area is
answered in four (4) rings (24 seconds) or less. Metro One
shall use commercially reasonable efforts to answer all calls
within four (4) rings (24 seconds) or less. Each call shall be
answered without the use of any on-hold time. Metro One shall
provide reports to Mobile Carrier monthly regarding its
performance under this paragraph for each Mobile Carrier.
e. ABANDONED STANDARD. In no event, except as provided in Section
22 ("Force Majeure") below, shall Metro One allow more than
five (5) percent of the EDA calls within a given calendar
month, to be Abandoned. Abandoned means calls that wait for
more than four (4) rings (24 seconds) and go unanswered. Metro
One shall report the percentage to Mobile Carriers monthly.
f. PROMPTNESS AND COURTESY. Metro One shall ensure that Metro
One's Operators provide courteous and prompt service to all
Subscribers in a professional manner.
g. SYSTEM ACCURACY. Metro One shall use all prudent business
measures to keep the System accurate to the same degree as the
database of the LEC for listings within the Call Completion
Area. In the event Metro One does not have sufficient
information in the System to provide basic listing data, it
shall utilize such other sources as commercially reasonable,
at no additional charge to the Mobile Carrier, to provide the
requested EDA services. Notwithstanding the foregoing, Metro
One shall be excused from performance to the extent that any
LEC or other Metro One selected data provider does not make
data available to Metro One under commercially reasonable
terms acceptable to Metro One in its sole discretion. In the
event Metro One does not have sufficient information in the
System to provide any one of the EDA services, it shall
utilize such other sources as necessary to provide the
requested EDA services, including, without limitation, the
back-up database provided as an on-line service by the LEC or
LEC operator delivered directory assistance. In the event that
either (i) a Caller requests the LEC directory assistance
operator, or (ii) Metro One cannot provide any one of the
requested EDA services, Metro One shall route a Caller's
telephone call to the LEC directory assistance operator. In
such a case, Metro One shall charge the Mobile Carrier the per
call fee in Section 9 (Payment) only, not the LEC's fees.
h. RAPID PROVISION OF SERVICES. Metro One shall ensure that
Subscribers obtain each desired telephone number or are
connected to such number without unnecessary delay after
requesting such number or connection from Metro One's
Operator. Metro One shall ensure that such data or connection
is provided to each
4-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
Subscriber as rapidly and accurately as possible except when
such connection cannot be made due to busy signal or other
impediment beyond Metro One's control.
i. CHANGE REQUESTS. Mobile Carrier may from time to time request
additions, enhancements, deletions, or other changes
("Change") to the EDA Services. Metro One shall promptly
implement the Change provided that (1) the technology required
to implement the Change is readily available and reliable and
commercially reasonable, and (2) the Parties have agreed in
writing to any rate adjustment resulting from such Change. The
Parties shall negotiate in good faith with respect to any rate
adjustment. Metro One is not obligated to provide any Change
without such written agreement.
j. CALL COMPLETION. Metro One's operators shall ensure that the
call is properly connected, but shall not otherwise monitor,
record, listen to or divulge the contents of any
communications, or any other information regarding Subscribers
or calls unless authorized by the Subscriber. Metro One and
Mobile Carrier may monitor Metro One processing portions of
calls solely for quality control purposes. Unless otherwise
requested by a Subscriber, Metro One shall remain accessible
to the Subscriber throughout the completed call through the
use of a system which will enable the Subscriber to recall
Metro One's operator.
k. GREETING AND CLOSING. Metro One shall answer all calls made to
the EDA Numbers with a greeting and closing to be provided by
each Mobile Carrier. Such greeting shall not exceed five (5)
seconds and such closing shall not exceed twelve (12) seconds
in length. All such greetings and closings may be delivered by
means of an automated voice playback system. Each Mobile
Carrier may change its greeting or closing upon thirty (30)
days' prior written notice to Metro One. Each Mobile Carrier
may change its greeting or closing no more than once in any
thirty-day period. The greetings or closings provided by each
Mobile Carrier shall not include the trade names, trademarks
or brands of any competitor of such Mobile Carrier, and shall
not contain negative characterizations of such competitor's
service or business.
l. MULTIPLE REQUESTS. Subscribers shall be entitled to a maximum
of four (4) directory assistance requests per call.
m. MULTIPLE LISTINGS. When there is more than one address or
telephone number applicable to a directory assistance request,
Metro One shall, at the Subscriber's request, provide up to
two multiple addresses and telephone numbers at no additional
charge.
5-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
n. ALTERNATE BILLING. Subscribers who request credit card or
calling services shall be advised to dial "0" or "00" after
disconnecting to reach the appropriate operator for such
services.
o. PRINCIPLE SITES FOR PROVISION OF SERVICE. Metro One shall
provide EDA services to Mobile Carriers from call centers
located in the areas listed in Exhibit D. * * *
p. 911. Mobile Carrier will not route 911 calls to Metro One. If
an emergency call is received by Metro One the Caller shall be
asked to dial "9-1-1" after disconnecting, except as otherwise
required by applicable law.
* * *
3. METRO ONE'S PERSONNEL
a. Metro One will employ only properly qualified, and trained
persons to perform the EDA Services. Metro One will assign
qualified management, customer service, technical support and
similar personnel as required to provide the EDA Services.
Metro One acknowledges that, in order to meet the expectations
and requirements of Mobile Carrier, Metro One will need to
provide a top quality, responsive team.
b. All personnel performing EDA Services are employees of Metro
One, and not of Mobile Carrier. Metro One will be responsible
for and shall properly withhold
6-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
and pay all federal tax, workers' compensation, pension,
deferred compensation, welfare, insurance and other employee
taxes or benefits payable to or on behalf of any person
engaged by Metro One performing the EDA Services.
c. Metro One shall ensure that all persons employed by it to
perform EDA Services hereunder are familiar with Mobile
Carrier's standards for customer service, provided that such
standards are provided in writing to Metro One. Mobile Carrier
shall from time to time provide Metro One with information
and/or training with respect to such standards at no cost to
Metro One.
d. Mobile Carrier may notify Metro One if, in Mobile Carrier's
opinion, any Metro One employee performing EDA Services is
unqualified, discourteous, or fails to conform to Mobile
Carrier's standards for customer service. Metro One shall take
such action as it deems reasonable to correct such
non-conformance.
4. COMPLAINTS
Both Parties shall refrain from any action that may tend to discredit
or damage the name, reputation, good will or good public relations of
the other. Metro One will give immediate attention to, investigate and
use its best efforts to promptly, courteously and equitably respond to,
adjust and settle (without incurring any obligation or liability on
behalf of Mobile Carrier), all oral or written complaints received by
Mobile Carrier or Metro One from any current or potential Subscriber or
anyone else arising out of or in connection with the EDA Services or
this Agreement. Both Parties will promptly notify the other of all
material complaints and of any action taken (or to be taken) in
connection with such complaints. In handling any complaints, both
Parties will use good faith efforts to maintain and promote the good
will of and good public relations of the other Party. In addition,
Metro One will respond promptly (and in no event in more than one
twenty-four (24) hour business day) with a proposed solution to correct
any problems in the EDA Services or the System identified by Mobile
Carrier in writing.
5. EDA NUMBER(S)
a. Mobile Carrier may establish and assign to Metro One one or
more "#XXX" number(s) or any other abbreviated dialing number,
including, but not limited to N11 numbers, for Mobile
Carrier's Subscribers to use in accessing Metro One's EDA
Services. Metro One acknowledges that it has no proprietary
interest in the "#XXX" or abbreviated dialing number(s) and
that Mobile Carrier may, from time to time and at its sole
discretion, change such number(s).
7-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
b. Mobile Carriers who have agreed to participate in this
Agreement, which participation is evidenced by listing in
Exhibit A or amendment thereto, shall route all Subscriber
calls to 555-1212, 1-555-1212, 1-NPA-555-1212, and 411 or
successor numbers to Metro One. Affiliates of AT&T Wireless
Services, Inc. not participating in this Agreement may
provision EDA Services from a provider of their choice other
than Metro One. * * *
c. The numbers referenced in 5(a) and (b) above shall
collectively be referred to as the "EDA Numbers."
6. FACILITIES AND EQUIPMENT
a. Metro One will maintain adequate and appropriate office
facilities, support facilities and other facilities to enable
Metro One to perform its obligations under this Agreement.
b. Mobile Carrier will at its expense establish, maintain and pay
for all T-1 trunk lines needed for adequate performance
between Mobile Carrier's MTSO and Metro One's System for
purposes of performing the EDA Services for all Subscriber
calls. Metro One shall be responsible for establishing,
maintaining and paying for all other telecommunications
facilities associated with providing the EDA Services
described herein.
c. Mobile Carrier shall determine the quantities of circuit
equipment and services needed and to provide blocking levels
in accordance with the Bellcore document SR-000191, TRUNK
TRAFFIC ENGINEERING CONCEPTS AND APPLICATIONS.
d. After EDA Services are installed, any Metro One problems or
deficiencies In Metro One's System will be promptly corrected
by Metro One at no additional cost to Mobile Carrier.
e. Metro One and Mobile Carrier will each do such maintenance
testing and inspection of its own systems as may be necessary
to ensure the proper functioning of the interconnection(s).
f. If one Party's System interferes with, creates hazards over,
or impairs the service of the other Party's System, the Party
interfered with will, where practicable,
8-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
notify the other Party and advise it that a temporary
disconnection or discontinuance of the equipment or service
may be required. If the interference is not cured in a
reasonable time, the Party whose network is interfered with
may temporarily disconnect or discontinue service until the
interference is rectified. When prior notice is not
practicable, the Party interfered with may temporarily
disconnect or discontinue the interconnection or traffic
interchange without prior notice if such action is reasonable
under the circumstances; provided, however, that such Party
provides notice of disconnection as soon as is reasonably
practicable under the circumstances.
7. REPORTS
a. For a period of three years with respect to each Mobile
Carrier, Metro One shall record and maintain call detail
records, in accordance with EMI record format, a sample of
which has been provided to Metro One, for each call answered
and/or completed by Metro One hereunder. Such call detail
records shall be sent by Metro One, at Metro One's expense, in
magnetic tape format, or such other format as is mutually
agreed to between the parties, to Cincinnati Bell Information
Systems at such times and in such frequency as instructed by
Mobile Carrier.
b. For a period of three years with respect to each Mobile
Carrier, Metro One shall also maintain complete and accurate
records of each call using the EDA Services, and shall provide
Mobile Carrier access to such records upon request. The
records shall include at a minimum the following:
(1) the time the call is received by Metro One;
(2) the number to which a call is connected;
(3) all complaints made by any Subscriber(s) concerning
the EDA Services;
(4) any other information routinely prepared by Metro One
and provided to Metro One's customers regarding the
EDA Services and/or any Subscribers; and
(5) the mobile telephone number used to make the call.
9-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
8. ADDITION AND DELETION OF CALLING AREAS
With the exception of the calculation of the per call service rates set
forth in Section 9 below, this Agreement shall have separate effect for
each Mobile Carrier. In order to add a new Mobile Carrier and Calling
Area to this Agreement, Mobile Carrier shall, by means of execution of
a Service Request Form provided as Exhibit B, provide Metro One with
ninety (90) days' prior written notice of the following items: (a) new
Calling Area (including NPA and NXX information), (b) new Mobile
Carrier, (c) effective date of the Agreement for the new Mobile
Carrier, and (d) the billing contact for the new Mobile Carrier. Such
Mobile Carrier shall be automatically incorporated into Exhibit A upon
execution of a Service Request Form provided as Exhibit B. Term of
participation for each Mobile Carrier shall be three years from
effective date of addendum to Exhibit A in the form provided in Exhibit
B. Metro One shall use its best efforts to commence service as soon as
commercially reasonable prior to the ninety days.
9. PAYMENT.
a. Each Mobile Carrier will pay Metro One based on the EDA call
count volume for such Mobile Carrier for the satisfactory
performance of the EDA Services at the rates set forth in
Exhibit E hereto * * * upon commencement of EDA Services
after the trial period. In the event a credit is issued by
such Mobile Carrier to its Customer based on Metro One
connecting that Customer to an incorrect telephone number,
Metro One will have in place a mechanism to provide, and
shall provide a credit to such Mobile Carrier for such
calls. In the event that any Mobile Carrier in which AT&T
Wireless Services, Inc. owns fifty percent (50%) or less
equity interest ("Licensed Carrier") participates in this
Agreement, such Licensed Carrier shall be separately liable
for all payment for EDA Services provided to it hereunder
and no other Mobile Carrier shall be obligated to make any
payments on behalf of such Licensed Carrier.
b. Metro One shall provide each Mobile Carrier with its EDA call
count volume records in an agreed upon format on the 15th day
of each month for the previous month's calls. Mobile Carriers
shall be provided with a report as to total call volumes for
all Mobile Carriers during the same month ("Total Call
Volume"). The Total Call Volume shall be used, together with
the Market call volumes to determine the per call rates to be
charged each Mobile Carrier.
c. Metro One shall send each Mobile Carrier an invoice to the
billing contact listed for such Mobile Carrier in Exhibit A.
Each Mobile Carrier shall pay Metro One within forty-five (45)
days of receipt of such invoice. Any payments received after
such forty-five (45) days will incur interest in the amount of
1.50% a month.
10-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
With respect to any Licensed Carrier, such Licensed Carrier
shall pay Metro One within sixty (60) days of its receipt of
the invoice for such Licensed Carrier.
d. The compensation set forth in Exhibit B shall be the entire
compensation due Metro One from Mobile Carrier on account of
the EDA Services provided under this Agreement. Each Mobile
Carrier shall be separately liable for its invoice and shall
not be liable for the charges incurred by other Mobile
Carriers.
e. Mobile Carrier may deduct any disputed amounts from the
applicable Metro One invoice. Metro One agrees that disputed
amounts shall not be considered late payments and may be
withheld from pending payments until such time as the Parties
agree to the disposition of the disputed amount or until the
dispute is resolved pursuant to Section 24 below. Disputed
amounts will be paid, if owed, within 15 days of the
resolution of the dispute.
* * *
10. COMMENCEMENT OF SERVICE
a. FULL SERVICE. On or before ninety (90) days after the date of
this Agreement, or, as the case may be, ninety (90) days of
the date of amendment pursuant to execution by both Parties of
a Service Request Form provided as Exhibit B, Metro One shall
be prepared to:
(1) answer all calls to the EDA Numbers;
(2) provide EDA Services throughout the Calling Area; and
(3) provide EDA Services for residential listings as well
as business listings.
* * *
11-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
* * *
c. EFFECTIVE DATE FOR MOBILE CARRIERS. For each Mobile Carrier
added to this Agreement under the terms of Section 8 above,
Metro One shall be provided with an effective date. Upon such
effective date, Metro One shall provide all EDA Services under
the terms and conditions of this Agreement to such Mobile
Carrier.
12-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
11. MARKETING
Mobile Carrier will have sole and exclusive control of the manner of
selling, publicizing, advertising and marketing to its subscribers the
EDA Services provided under this Agreement to Mobile Carrier in the
Calling Area. Without limiting the generality of the foregoing:
a. Mobile Carrier will determine any trademarks for the EDA
Services as a whole offered by Mobile Carrier to its
Subscribers in the Calling Area (references to individual
product features, if any, shall be made using their Metro One
trademarks, such as StarBack-REGISTERED TRADEMARK-);
b. Mobile Carrier will establish, from time to time, the rates
and other terms and conditions under which the EDA Services
will be available to Subscribers;
c. Mobile Carrier will be responsible for all billing to
Subscribers and collections from Subscribers with respect to
the EDA Services; and
d. Mobile Carrier will conduct such promotional programs and
advertising of the EDA Services provided under this Agreement
as Mobile Carrier deems appropriate. Metro One shall not refer
to Mobile Carrier or use any trade name, trademark or service
mark of AT&T Wireless Services, Inc. or any Mobile Carrier in
any advertisement, promotion, publication or other
communication (including, without limitation, press release,
presentations or materials submitted to any investors or
potential investors in Metro One, and presentations or
solicitations to any other wireless services provider made by
Metro One) without the prior written consent of AT&T Wireless
Services, Inc. Notwithstanding the foregoing, Metro One may
list AT&T Wireless Services, Inc. as a customer, if required,
in filings with governmental agencies or in financial
statements prepared in accordance with generally accepted
accounting principles.
e. Mobile Carrier agrees to use reasonable efforts to promote the
availability of EDA Services to Subscribers.
f. Metro One shall not misrepresent the nature or scope of this
Agreement or of the business relationship, if any, between
Metro One, AT&T Wireless Services, Inc. and the Mobile
Carrier(s).
13-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
12. TRADEMARKS
a. Each Party acknowledges the goodwill associated with the
other's trademarks, service marks and trade names ("Marks").
Each Party shall own its own respective Marks and will not
acquire rights in the Marks of the other Party. Neither Party
will use any Marks of the other without the other's prior
written consent, which may be withheld for any reason.
b. Metro One hereby grants Mobile Carriers a non-exclusive
license to use the Metro One Telecommunications-REGISTERED
TRADEMARK-, Enhanced Directory Assistance-REGISTERED
TRADEMARK-, The Enhanced Directory Assistance
People-REGISTERED TRADEMARK-, StarBack-REGISTERED TRADEMARK-,
SureConnect-TM-, AutoBack-TM-, CallBack-TM-, MessageBack-TM-,
TeleConcierGETM and NumberBack-TM- service marks in Mobile
Carriers' marketing of EDA services within the Call
Origination Area during the term of this Agreement.
13. LIMITATION OF LIABILITY
In no event shall either Party be liable to the other Party for any
incidental, indirect, special, exemplary, punitive or consequential
damages to the other Party (including, without limitation, lost
profits, loss of use, lost data or damages for any interruption of
business) arising out of or relating to the operation of the EDA
Services.
14. REPRESENTATIONS AND WARRANTIES
Metro One and Mobile Carrier each represent and warrant to the other
that:
a. Each Party is a corporation or partnership that is duly
organized, validly existing, in good standing, and fully
authorized to do business in and provide the service described
herein under the laws of the State in which the EDA service
will be provided and, as applicable, under federal law;
b. All corporate action on the parts of Metro One and Mobile
Carrier necessary for the authorization, execution, delivery
and performance by the parties under this Agreement and that
this Agreement when duly executed and delivered by both
Parties, shall constitute a valid and binding obligation for
each, enforceable in accordance with its terms; and
c. Metro One has good and clear title to or right to utilize, in
the provision of EDA Service to Mobile Carrier, the software,
facilities, equipment and other technical
14-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
or intellectual property elements that comprise or form a part
of the provisioning of EDA Service to Mobile Carrier.
15. INDEMNIFICATION
a. "Claim(s)" as used herein shall include but not be limited to
all actions, causes of action, liabilities, claims, suits,
judgments, liens, awards, and damages of any kind and nature
whatsoever.
b. Metro One shall indemnify, defend and hold Mobile Carrier
harmless from and against: (I) any and all Claims arising out
of any act or omission of Metro One, its officers, employees,
agents, contractors, suppliers, licensees or invitees in
connection with the EDA Services provided by Metro One
pursuant to this Agreement; (II) any and all third party
Claims of patent, copyright, trade secret, trademark or other
intellectual property or proprietary right infringement
arising out of or in any way related to the EDA Services; and
(III) any and all Claims that EDA Services as provided
hereunder are unlawful. Mobile Carrier shall promptly tender,
and Metro One shall accept, the defense of Mobile Carrier on
all such Claims with counsel reasonably acceptable to Mobile
Carrier. Metro One shall promptly reimburse Mobile Carrier for
all amounts reasonably paid by Mobile Carrier in satisfaction
of judgments or in settlement of any such Claim, providing
that Mobile Carrier shall not settle any Claim without the
consent of Metro One, which shall not be unreasonably
withheld. Metro One also shall reimburse Mobile Carrier for
all attorneys' fees and expenses incurred in defending against
or investigating any such Claim, but Metro One shall have no
liability for such fees and expenses if it accepts the defense
of Mobile Carrier within ten (10) days of the tender. Metro
One's obligations under this Section shall extend to Mobile
Carrier, its parent, subsidiaries and affiliates, and the
officers, directors, employees, representatives and agents of
each of them.
c. Mobile Carrier shall defend, indemnify and hold Metro One
harmless from any Claim brought by a third party for which
injury is solely caused by the negligent acts or omissions or
willful misconduct of Mobile Carrier or its employees, agents
or contractors in connection with the performance of this
Agreement. Metro One shall promptly tender, and Mobile Carrier
shall accept, the defense of Metro One on all such Claims with
counsel reasonably acceptable to Metro One. Mobile Carrier
shall promptly reimburse Metro One for all amounts reasonably
paid by Metro One in satisfaction of judgments or in
settlement of any such Claim, providing that Metro One shall
not settle any Claim without the consent of Mobile Carrier,
which shall not be unreasonably withheld. Mobile Carrier also
shall reimburse Metro One for all attorneys' fees and expenses
incurred in defending
15-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
against or investigating any such Claim, but Mobile Carrier
shall have no liability for such fees and expenses if it
accepts the defense of Metro One within ten (10) days of the
tender. Mobile Carrier's obligations under this Section shall
extend to Metro One, its parent, subsidiaries and affiliates,
and the officers, directors, employees, representatives and
agents of each of them.
16. CONFIDENTIAL INFORMATION
a. With respect to all Confidential Information, the Party
receiving such information shall, unless otherwise agreed to
in writing by the Party furnishing such information, use
reasonable efforts to: a) neither use nor permit any use of
the Confidential Information for any purpose except in
connection with providing EDA Services pursuant to this
Agreement and except as may otherwise be agreed to in writing
by the other Party; b) restrict disclosure solely to those
employees, contractors or agents having a need to know; and c)
advise those employees receiving Confidential Information of
their obligations with respect thereto.
b. Confidential Information shall be deemed the property of the
furnishing Party for the purposes of this Agreement. The
receiving Party shall not reproduce or copy Confidential
Information except as required for the purposes stated herein
unless otherwise authorized by the furnishing Party in
writing. The receiving Party shall return to the furnishing
Party, or shall destroy, all records containing the
Confidential Information upon the termination of this
Agreement and upon written request by the furnishing Party.
The requirements of use and confidentiality set forth herein
shall survive for three (3) years after termination of this
Agreement.
c. Nothing contained in this Agreement shall be construed as
granting or conferring any rights by license or otherwise in
any information disclosed.
d. In the event either Party is requested or required (by oral
question, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar
process) to disclose Confidential Information of the other to
any lawfully constituted authority, it is agreed that the
Party requested or required to furnish the Confidential
Information will provide the other Party with timely notice in
order for that Party to seek a protective order or otherwise
object.
e. The Parties agree that it would be difficult to measure the
monetary damages that would be incurred by the other Party by
reason of the failure of the other Party to comply with the
terms of this paragraph. The Parties therefore agree that
either
16-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
Party may seek injunctive relief, which the Parties
agree is appropriate for enforcement of this paragraph.
17. TERM
* * * The term of this Agreement shall be automatically extended
for additional period(s) of one (1) year each unless either Party
notifies the other Party, in writing, at least ninety (90) days in
advance of the end of the term then in effect, of that Party's
intent to terminate the Agreement at the end of the term then in
effect.
18. TERMINATION
a. Any Mobile Carrier may terminate this Agreement immediately if
Metro One is in material breach of or default under this
Agreement by giving Metro One written notice of such
termination. The occurrence of any of the following shall
constitute a material breach of and default under this
Agreement by Metro One:
(1) any failure by Metro One to perform any of its
material obligations in accordance with this
Agreement, where such failure continues for thirty
(30) days after written notice to Metro One or occurs
repeatedly after such written notice;
(2) the filing by Metro One of a petition in bankruptcy
or the making of any general assignment for the
benefit of creditors;
(3) any untruthfulness of any material information
provided by Metro One to Mobile Carrier relating to
this Agreement;
b. Metro One may terminate this Agreement immediately with
respect to a Mobile Carrier by providing such Mobile Carrier
with written notice of termination if such Mobile Carrier is
in material breach or default under this Agreement and such
breach or default continues for a period of thirty (30) days
after Metro One delivers written notice of such breach or
default to such Mobile Carrier; provided, however, that if
such breach or default is related to or arises out of a
disputed payment from such Mobile Carrier to Metro One, and
such disputed payment has been submitted for resolution under
Section 24 below, then Metro One shall have no right to
terminate this Agreement on the basis of such disputed
payment.
17-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
c. Either Party may terminate this Agreement if any circumstance
would render the continued performance of this Agreement by
either Party in violation of any applicable law, statute, rule
or regulation.
d. Upon termination or expiration of the term, in addition to any
other rights or remedies of Mobile Carrier, Metro One will:
(1) cease to provide the EDA Services to Subscribers; and
(2) deliver to Mobile Carrier a final invoice for amounts
payable under this Agreement;
e. Both Parties shall in addition upon termination or expiration
of the term:
(1) promptly return to the other Party all materials
containing any Confidential Information of such
Party; and
(2) cease all use, if any, of the other Party's Marks.
19. LAWFULNESS
This Agreement and the Parties' actions under this Agreement shall
comply with all applicable federal, state, and local laws, rules,
regulations, court orders, and governmental agency orders. If a court
or a governmental agency with proper jurisdiction determines that this
Agreement, or a provision of this Agreement, is unlawful, this
Agreement, or that provision of this Agreement, shall terminate on the
effective date of such court's determination. If a provision of this
Agreement is so terminated, but the Parties legally, commercially, and
practicably can continue this Agreement without the terminated
provision, the remainder of this Agreement shall continue in effect.
20. GOVERNMENT APPROVALS
Each Party shall obtain all necessary regulatory approvals required of
it and shall assist the other Party in obtaining all necessary
regulatory approvals required of the other Party for the provision of
EDA Services to Subscribers.
18-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
21. ASSISTANCE
Each Party will provide the other reasonable assistance in any matters
affecting this Agreement before any governmental authority, trade
association or other organization. Such assistance may include
preparing and furnishing documents, providing advice, and providing
qualified personnel to participate in hearings or other proceedings.
22. FORCE MAJEURE
Either Party shall be excused from performance if its performance is
prevented by acts or events beyond the Party's reasonable control,
including, but not limited to: severe weather and storms; earthquakes
or other natural occurrences; strikes or other labor unrest; power
failures; acts of legislative, judicial, executive or administrative
authorities.
23. ASSIGNMENT
Neither Party may assign or transfer this Agreement or any of its
obligations hereunder without the prior written consent of the other,
which consent will not be unreasonably withheld.
24. SERVICE TESTING
Metro One may negotiate with each Mobile Carrier for the provision of a
wireless telephone, wireless access line of landline access line to be
used to test the quality of Metro One's services for such Mobile
Carrier. Nothing in this Agreement shall require Metro One and any
Mobile Carrier to come to an agreement on this provisioning.
25. SURVIVAL OF OBLIGATIONS
The obligations set forth in Sections 12 ("Trademarks") and 16
("Confidential Information") and in this Section 25 hereof will survive
the termination or expiration of this Agreement, in addition to any
other provisions that, by their content, are intended to survive the
performance, termination, or cancellation of this Agreement.
19-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
26. DISPUTE RESOLUTION
a. The Parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, except for an
action seeking a temporary restraining order or an injunction
related to the purposes of this Agreement, or an action to
compel compliance with this dispute resolution process, the
Parties agree to use the following dispute resolution
procedure as their sole remedy with respect to any controversy
or claim arising out of or relating to this Agreement or its
breach. The existence of a dispute, which is being resolved
under the procedures set forth herein, shall not be grounds
for termination of the agreement, and both parties shall
continue to perform under this Agreement while such dispute is
being resolved.
(1) At the written request of a Party to resolve a
dispute, each Party will appoint a knowledgeable,
responsible representative to meet and negotiate in
good faith to resolve any dispute arising under this
Agreement. The Parties intend that these negotiations
shall be conducted by non-lawyer, business
representatives. The location, format, frequency,
duration and conclusion of these discussions shall be
left to the discretion of the representatives. Upon
reaching agreement, the representatives may utilize
other alternative dispute resolution procedures, such
as mediation, to assist in the negotiations.
Discussion and correspondence among the
representatives for purposes of these negotiations
shall be treated as confidential information
developed for purposes of settlement, exempt from
discovery and production, and shall not be admissible
in the arbitration discussed below, or any
litigation, without the concurrence of both Parties.
Documents identified in or provided with such
communications, which are not prepared for purposes
of negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in the
arbitration of lawsuit.
(2) If the negotiations do not resolve the dispute within
sixty (60) days of the initial written request, the
dispute shall be submitted to binding arbitration by
a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration
Association. A Party may demand such arbitration in
accordance with the procedures set out in those
rules. Discovery shall be controlled by the
arbitrator and shall be permitted to the extent set
out in this subsection. Each Party may submit in
writing to a Party, and that Party shall so respond,
to a maximum of any combination of thirty-five (35)
(none of which may have subparts) of the following:
interrogatories, requests for production of
documents, and requests for admission. Each Party is
also entitled to take the oral deposition of up to
three individuals
20-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
of the other Party. Additional discovery may be
permitted upon mutual agreement of the Parties.
(3) The arbitration hearing shall be commenced within
ninety (90) days of the demand for arbitration. The
arbitration shall be held in Seattle, Washington, or
such other location as is agreed upon among the
arbitrator and the Parties. The arbitrator shall
control the schedule so as to process the matter
expeditiously. The Parties may submit written briefs
of no more than 25 pages in length, double spaced, 10
pitch, with left and right hand margins of at least
one inch. The arbitrator shall rule on the dispute by
issuing a written opinion within thirty (30) days of
the close of hearings. The times specified in this
subsection may be extended upon a showing of good
cause. Judgment upon the award rendered by the
arbitrator may be entered in any court having
jurisdiction.
(4) Each Party shall bear its own costs of these
procedures. A Party seeking discovery shall reimburse
the responding Party for the responding Party's
copying costs of reproducing the documents. The
Parties shall equally split the fees of the
arbitration and the arbitrator.
27. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties
related to the subject matter hereof, and supersedes any and all prior
negotiations, representations, correspondence, understandings and
agreements with respect to the subject matter hereof. No amendment,
alteration, or modification of any of the terms of this Agreement will
be effective unless in a writing signed by both Parties.
28. NO THIRD PARTY BENEFICIARIES
Callers shall not be Third Party beneficiaries under this Agreement.
Nothing expressed or implied in this Agreement is intended or shall be
construed to confer or give any person other than Mobile Carrier and
Metro One, their respective successors and permitted assigns any rights
or remedies under or by reason of this Agreement.
29. WAIVER
The failure of either Party to enforce at any time any provision hereof
shall not be construed to be a waiver of such provision or the right
thereafter to enforce each and
21-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
every provision. No waiver by either Party to this Agreement, either
express or implied, or any breach of any term, condition or obligation
of this Agreement shall be construed as a waiver of any subsequent
breach of that term, condition or obligation, or of any other term,
condition or obligation of this Agreement.
30. APPLICABLE LAW
This Agreement will be governed by the laws of the State of Washington.
21. NOTICES
Any notices, demand or other communications under this Agreement given
by one Party to the other shall be in writing and shall be deemed to
have been duly delivered on the date delivered in person or sent via
telex, telecopier or cable or three (3) business days after the date
deposited. postage prepaid, in the United States mails via certified
mail, return receipt requested, addressed as set forth below:
To Metro One:
Metro One Telecommunications, Inc.
8405 SW Nimbus Avenue
Beaverton, Oregon 97008
Attn: President
To Mobile Carrier:
(1) to the appropriate billing contact set forth for such
Mobile Carrier in Exhibit A; and
(2) to:
AT&T Wireless Services, Inc.
5000 Carillon Point
Kirkland, WA 98033
Attn:
-----------------------------
(3) with a copy to:
AT&T Wireless Services, Inc.
5000 Carillon Point
22-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
Kirkland, WA 98033
Attn: Legal Department
Either Party may from time to time change such address and recipient by giving
the other Party notice of such change in accordance herewith. Any such
notice will be deemed given when received.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date set forth below.
AT&T WIRELESS SERVICES, INC.
By: /s/ Stewart B. Chapin
------------------------------
Name: Stewart B. Chapin
------------------------------
Title: Director
------------------------------
Dated: May 2,1997
------------------------------
METRO ONE TELECOMMUNICATIONS, INC.
By: /s/ Timothy A. Timmins
------------------------------
Name: Timothy A. Timmins
------------------------------
Title: President
------------------------------
Dated: April 28, 1997
------------------------------
23-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
EXHIBIT A
MOBILE CARRIERS AND CALLING AREAS
MOBILE CARRIER AND EFFECTIVE
BILLING CONTACT CALL ORIGINATION AREA CALL COMPLETION AREA DATE
------------------ --------------------- -------------------- ---------
MOBILE CARRIERS AND/OR ADDITIONAL CALLING AREAS MAY BE ADDED TO THIS EXHIBIT A
BY MEANS OF EXECUTION BY BOTH PARTIES OF A SERVICE REQUEST FORM AS SHOWN IN
EXHIBIT B.
24-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
EXHIBIT B
SERVICE REQUEST FORM
MOBILE CARRIER NAME:
CALL ORIGINATION AREA:
(ATTACH MAP IF DESIRED)
CALL COMPLETION AREA:
(INCLUDE NPA AND NXX INFORMATION)
EFFECTIVE DATE:
IN WITNESS WHEREOF, the Parties have executed this Service Request Form on the
date set forth below, and agree to be bound by the terms and conditions of the
Agreement between AT&T Wireless Services, Inc. and Metro One Telecommunications,
Inc. relating to Enhanced Directory Assistance Services and dated
___________________________.
MOBILE CARRIER METRO ONE
TELECOMMUNICATIONS, INC.
_____________________________________
Mobile Carrier Name
By: ______________________________ By: ________________________________
Name: ______________________________ Name: _____________________________
Title: ______________________________ Title: _____________________________
Dated: ______________________________ Dated: _____________________________
25-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
EXHIBIT C
EDA SERVICES
For purposes of the Agreement to which this Exhibit C is an integral part, EDA
Services shall include, in addition to (i) call completion (termination) by
outpulsing to Mobile Carrier's directed network the digits of the
Subscriber-requested number; (ii) provision of name, address, and telephone
number when requested and when legally available through Metro One's System, the
following:
1. Category searches
2. Local event information
3. Movie and theater listings
4. StarBack
5. AutoBack
6. NumberBack
And when commercially available:
1. MessageBack
2. CallBack
THIS EXHIBIT MAY BE MODIFIED FROM TIME TO TIME BY MUTUAL WRITTEN AGREEMENT OF
THE PARTIES. EACH MOBILE CARRIER MAY CHOOSE TO RECEIVE ANY OR ALL OF THESE EDA
SERVICES.
26-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
EXHIBIT D
METRO ONE CALL CENTERS / MARKETS
- ------------------------------------------------------------ ---------------------------------------------------------
CALL CENTER / MARKET CALL ORIGINATION AREA
- ------------------------------------------------------------ ---------------------------------------------------------
1. Seattle Alaska, Washington, Montana
- ------------------------------------------------------------ ---------------------------------------------------------
2. Portland Oregon, Idaho
- ------------------------------------------------------------ ---------------------------------------------------------
3. Sacramento* Sacramento portion of Northern California, Northern
Nevada
- ------------------------------------------------------------ ---------------------------------------------------------
4. San Francisco* Bay Area portion of Northern California, Central Valley
- ------------------------------------------------------------ ---------------------------------------------------------
5. Los Angeles** Southern California except San Diego
- ------------------------------------------------------------ ---------------------------------------------------------
6. San Diego San Diego area
- ------------------------------------------------------------ ---------------------------------------------------------
7. Phoenix Southern Nevada, Arizona, New Mexico
- ------------------------------------------------------------ ---------------------------------------------------------
8. Denver Colorado, Utah, Wyoming
- ------------------------------------------------------------ ---------------------------------------------------------
9. Minneapolis Minnesota, North Dakota, South Dakota, Western Wisconsin
- ------------------------------------------------------------ ---------------------------------------------------------
10. Chicago Northern Illinois, Eastern Wisconsin
- ------------------------------------------------------------ ---------------------------------------------------------
11. Detroit Michigan
- ------------------------------------------------------------ ---------------------------------------------------------
12. St. Louis Eastern Missouri, Southern Illinois, Eastern Nebraska
- ------------------------------------------------------------ ---------------------------------------------------------
13. New Orleans* Louisiana, Mississippi, Alabama
- ------------------------------------------------------------ ---------------------------------------------------------
14. San Antonio* Southern Texas
- ------------------------------------------------------------ ---------------------------------------------------------
15. Atlanta* Georgia, North Carolina, South Carolina
- ------------------------------------------------------------ ---------------------------------------------------------
16. Cleveland/Cincinnati/Indianapolis* Ohio, Indiana, Western West Virginia
- ------------------------------------------------------------ ---------------------------------------------------------
17. Nashville* Tennessee, Kentucky
- ------------------------------------------------------------ ---------------------------------------------------------
18. Kansas City* Kansas, Western Missouri, Western Nebraska
- ------------------------------------------------------------ ---------------------------------------------------------
19. Dallas* Northern Texas, Oklahoma, Arkansas
- ------------------------------------------------------------ ---------------------------------------------------------
20. Philadelphia Pennsylvania, Delaware, Southern New Jersey
- ------------------------------------------------------------ ---------------------------------------------------------
21. New York** New York, Northern New Jersey, Western Connecticut
- ------------------------------------------------------------ ---------------------------------------------------------
22. Baltimore Maryland, Washington DC, Virginia, Eastern West
Virginia
- ------------------------------------------------------------ ---------------------------------------------------------
23. Boston* Eastern Massachusetts, Eastern Connecticut, Rhode
Island, New Hampshire, Maine
- ------------------------------------------------------------ ---------------------------------------------------------
24. Orlando/Jacksonville* Northern Florida, Tampa, Gulf Area
- ------------------------------------------------------------ ---------------------------------------------------------
25. Miami (Ft. Lauderdale) Southern Florida
- ------------------------------------------------------------ ---------------------------------------------------------
The Call Origination Areas shown above constitute Markets for purposes of
pricing of and payment for EDA services covered by the Agreement.
* Not existing as of the date of Agreement.
** Under construction.
27-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES
* * *
28-AGREEMENT FOR ENHANCED DIRECTORY ASSISTANCE SERVICES