Attached files

file filename
EX-31.1 - EX-31.1 - Inteliquent, Inc.iqnt-ex311_7.htm
EX-32.1 - EX-32.1 - Inteliquent, Inc.iqnt-ex321_8.htm
EX-31.2 - EX-31.2 - Inteliquent, Inc.iqnt-ex312_6.htm
EX-10.2 - EX-10.2 - Inteliquent, Inc.iqnt-ex102_225.htm
10-Q - 10-Q - Inteliquent, Inc.iqnt-10q_20150930.htm

Exhibit 10.1

Telecom Master Services Agreement

Between

T-MOBILE USA, INC.

and

Inteliquent, Inc.

dated

June 23, 2015

 

 

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


T-Mobile Confidential

 

 

1.

 

DEFINITIONS

 

2

 

 

 

 

 

 

 

 

1.1

Certain Definitions.

 

2

 

 

 

 

 

 

 

 

1.2

Other Terms.

 

2

 

 

 

 

 

2.

 

BACKGROUND AND OBJECTIVES

 

2

 

 

 

 

 

 

 

 

2.1

Background and Objectives.

 

2

 

 

 

 

 

 

 

 

2.2

Construction.

 

2

 

 

 

 

 

3.

 

AGREEMENT STRUCTURE, INTERPRETATION AND ENFORCEABILITY

 

3

 

 

 

 

 

 

 

 

3.1

Agreement Structure.

 

3

 

 

 

 

 

 

 

 

3.2

Interpretation of Documents.

 

3

 

 

 

 

 

 

 

 

3.3

T-Mobile Parent and T-Mobile Affiliates.

 

4

 

 

 

 

 

 

 

 

3.4

Parent Guaranty; Joint and Several Liability.

 

4

 

 

 

 

 

 

 

 

3.5

Entire Agreement.

 

4

 

 

 

 

 

4.

 

SERVICES AND DELIVERABLES

 

4

 

 

 

 

 

 

 

 

4.1

Provision of Services and Deliverables.

 

4

 

 

 

 

 

 

 

 

4.2

Project Management.

 

6

 

 

 

 

 

 

 

 

4.3

Provision of Services to Affiliates.

 

7

 

 

 

 

 

 

 

 

4.4

New Services and Orders; Future SAs.

 

7

 

 

 

 

 

 

 

 

4.5

Processing of Service Orders under Existing SAs.

 

8

 

 

 

 

 

 

 

 

4.6

Acceptance of Services and Deliverables.

 

9

 

 

 

 

 

 

 

 

4.7

Transition Services.

 

9

 

 

 

 

 

 

 

 

4.8

Network Connectivity

 

13

 

 

 

 

 

 

 

 

4.9

Governmental Approvals and Consents.

 

14

 

 

 

 

 

 

 

 

4.10

Knowledge Sharing.

 

14

 

 

 

 

 

 

 

 

4.11

Quality Control.

 

15

 

 

 

 

 

 

 

 

4.12

Service Locations.

 

15

 

 

 

 

 

5.

 

TERM

 

16

 

 

 

 

 

 

 

 

5.1

Term of the GTCs, SAs, and Orders.

 

16

 

 

 

 

 

 

 

 

5.2

Extensions of Term.

 

16

 

 

 

 

 

 

 

 

5.3

Termination by T-Mobile.

 

16

 

 

 

 

 

 

 

 

5.4

Termination by Provider.

 

18

 

 

 

 

 

 

 

Master Services Agreement

ii

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

 

5.5

Cross-Termination.

 

18

 

 

 

 

 

 

 

 

5.6

Return of Property.

 

18

 

 

 

 

 

 

 

 

5.7

Fraud Prevention Assistance.

 

18

 

 

 

 

 

 

 

 

5.8

Termination/Expiration Assistance.

 

18

 

 

 

 

 

6.

 

CHARGES

 

22

 

 

 

 

 

 

 

 

6.1

General.

 

22

 

 

 

 

 

 

 

 

6.2

Reimbursable Expenses.

 

22

 

 

 

 

 

 

 

 

6.3

Taxes.

 

23

 

 

 

 

 

 

 

 

6.4

Charges for New Services.

 

25

 

 

 

 

 

 

 

 

6.5

Extraordinary Events

 

26

 

 

 

 

 

7.

 

INVOICING AND PAYMENT

 

26

 

 

 

 

 

 

 

 

7.1

General.

 

26

 

 

 

 

 

 

 

 

7.2

Invoicing.

 

26

 

 

 

 

 

 

 

 

7.3

Payment Due.

 

27

 

 

 

 

 

 

 

 

7.4

Accountability.

 

28

 

 

 

 

 

 

 

 

7.5

Proration.

 

28

 

 

 

 

 

 

 

 

7.6

Set-Off.

 

28

 

 

 

 

 

 

 

 

7.7

Disputed Charges.

 

28

 

 

 

 

 

8.

 

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

 

28

 

 

 

 

 

 

 

 

8.1

Most-Favored Customer.

 

28

 

 

 

 

 

 

 

 

8.2

Benchmarking.

 

29

 

 

 

 

 

 

 

 

8.3

Continuous Improvement and Best Practices.

 

29

 

 

 

 

 

9.

 

SAFEGUARDING OF DATA; CONFIDENTIALITY

 

30

 

 

 

 

 

 

 

 

9.1

T-Mobile Confidential Information and Personal Information.

 

30

 

 

 

 

 

 

 

 

9.2

Safeguarding T-Mobile Confidential Information.

 

31

 

 

 

 

 

 

 

 

9.3

Security Breaches.

 

33

 

 

 

 

 

 

 

 

9.4

Confidentiality.

 

33

 

 

 

 

 

 

 

 

9.5

Security of Cardholder Information.

 

35

 

 

 

 

 

10.

 

PERFORMANCE STANDARDS AND SERVICE LEVELS

 

36

 

 

 

 

 

 

 

 

10.1

General.

 

36

 

 

 

 

 

 

 

Master Services Agreement

iii

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

 

10.2

Productivity Commitments.

 

36

 

 

 

 

 

 

 

 

10.3

Service Level Reporting.

 

37

 

 

 

 

 

 

 

 

10.4

Quarterly and Annual Reviews.

 

37

 

 

 

 

 

 

 

 

10.5

Measurement and Monitoring Tools.

 

37

 

 

 

 

 

 

 

 

10.6

Adjustment of Service Levels

 

37

 

 

 

 

 

 

 

 

10.7

Root-Cause Analysis.

 

38

 

 

 

 

 

 

 

 

10.8

Service Credits.

 

39

 

 

 

 

 

 

 

 

10.9

Deliverable Credits.

 

39

 

 

 

 

 

 

 

 

10.10

Performance Information.

 

39

 

 

 

 

 

11.

 

GOVERNANCE

 

40

 

 

 

 

 

 

 

 

11.1

Governance Teams

 

40

 

 

 

 

 

 

 

 

11.2

Use of Subcontractors.

 

40

 

 

 

 

 

 

 

 

11.3

Service Change Procedures.

 

41

 

 

 

 

 

 

 

 

11.4

Change in Laws.

 

43

 

 

 

 

 

 

 

 

11.5

Procedures Manual

 

43

 

 

 

 

 

12.

 

AUDITS

 

44

 

 

 

 

 

 

 

 

12.1

Audit Rights.

 

44

 

 

 

 

 

 

 

 

12.2

Audit Follow-Up.

 

45

 

 

 

 

 

 

 

 

12.3

Audit Procedure Development.

 

46

 

 

 

 

 

 

 

 

12.4

Records Retention.

 

46

 

 

 

 

 

13.

 

PERSONNEL

 

46

 

 

 

 

 

 

 

 

13.1

Key Provider Personnel.

 

46

 

 

 

 

 

 

 

 

13.2

Services Personnel Qualifications.

 

47

 

 

 

 

 

 

 

 

13.3

Services Personnel Verification and Additional Obligations.

 

48

 

 

 

 

 

 

 

 

13.4

Maintaining Services Personnel Records.

 

50

 

 

 

 

 

 

 

 

13.5

Transfer of T-Mobile Personnel

 

50

 

 

 

 

 

 

 

 

13.6

Service Delivery Management

 

50

 

 

 

 

 

14.

 

SOFTWARE AND PROPRIETARY RIGHTS

 

51

 

 

 

 

 

 

 

 

14.1

General.

 

51

 

 

 

 

 

 

 

 

14.2

T-Mobile Software.

 

51

 

 

 

 

 

 

 

 

14.3

Provider Software.

 

51

 

 

 

 

 

 

 

Master Services Agreement

iv

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

 

14.4

Existing Third Party Software.

 

52

 

 

 

 

 

 

 

 

14.5

New Third Party Software.

 

53

 

 

 

 

 

 

 

 

14.6

Rights in Newly Developed Software and Other Materials.

 

54

 

 

 

 

 

 

 

 

14.7

Open Source Software.

 

54

 

 

 

 

 

 

 

 

14.8

Ownership of Non-Software Materials.

 

55

 

 

 

 

 

 

 

 

14.9

Work Made for Hire.

 

55

 

 

 

 

 

 

 

 

14.10

Residual Knowledge.

 

56

 

 

 

 

 

 

 

 

14.11

Export

 

56

 

 

 

 

 

 

 

 

14.12

Escrow of Source Code.

 

56

 

 

 

 

 

 

 

 

14.13

License to Services.

 

57

 

 

 

 

 

 

 

 

14.14

Services Personnel IP.

 

57

 

 

 

 

 

15.

 

THIRD PARTY CONTRACTS, FACILITIES AND EQUIPMENT.

 

57

 

 

 

 

 

 

 

 

15.1

Third Party Contracts.

 

57

 

 

 

 

 

 

 

 

15.2

Assigned Contracts.

 

59

 

 

 

 

 

 

 

 

15.3

Performance Under Contracts.

 

59

 

 

 

 

 

 

 

 

15.4

Facilities.

 

59

 

 

 

 

 

 

 

 

15.5

Procurement of Equipment and Software.

 

60

 

 

 

 

 

 

 

 

15.6

Disposal of Equipment.

 

61

 

 

 

 

 

 

 

 

15.7

Required Consents

 

61

 

 

 

 

 

16.

 

REPRESENTATIONS AND WARRANTIES

 

61

 

 

 

 

 

 

 

 

16.1

Work Standards.

 

61

 

 

 

 

 

 

 

 

16.2

Certifications.

 

61

 

 

 

 

 

 

 

 

16.3

Maintenance.

 

61

 

 

 

 

 

 

 

 

16.4

Efficiency and Cost Effectiveness.

 

62

 

 

 

 

 

 

 

 

16.5

Technology.

 

62

 

 

 

 

 

 

 

 

16.6

Ownership and Use; Non-Infringement.

 

62

 

 

 

 

 

 

 

 

16.7

Third Party Contracts.

 

62

 

 

 

 

 

 

 

 

16.8

Authorization.

 

62

 

 

 

 

 

 

 

 

16.9

Inducements.

 

63

 

 

 

 

 

 

 

 

16.10

Viruses.

 

63

 

 

 

 

 

 

 

 

16.11

Disabling Code.

 

63

 

 

 

 

 

 

 

Master Services Agreement

v

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

 

16.12

Deliverables.

 

63

 

 

 

 

 

 

 

 

16.13

Foreign Corrupt Practices Act

 

64

 

 

 

 

 

 

 

 

16.14

Previous Security Audits

 

65

 

 

 

 

 

 

 

 

16.15

Disclaimer.

 

65

 

 

 

 

 

 

17.

 

INSURANCE AND RISK OF LOSS

 

66

 

 

 

 

 

 

 

 

17.1

Insurance.

 

66

 

 

 

 

 

 

 

 

17.2

Risk of Loss.

 

67

 

 

 

 

 

18.

 

INDEMNITIES

 

68

 

 

 

 

 

 

 

 

18.1

Indemnity by Provider.

 

68

 

 

 

 

 

 

 

 

18.2

Indemnity by T-Mobile.

 

69

 

 

 

 

 

 

 

 

18.3

Additional Indemnities.

 

69

 

 

 

 

 

 

 

 

18.4

Infringement.

 

69

 

 

 

 

 

 

 

 

18.5

Indemnification Procedures.

 

70

 

 

 

 

 

 

 

 

18.6

Subrogation.

 

71

 

 

 

 

 

19.

 

LIABILITY

 

71

 

 

 

 

 

 

 

 

19.1

General Intent.

 

71

 

 

 

 

 

 

 

 

19.2

Liability Restrictions.

 

71

 

 

 

 

 

 

 

 

19.3

Force Majeure; Excused Performance.

 

73

 

 

 

 

 

 

 

 

19.4

Payment Obligation.

 

75

 

 

 

 

 

 

 

 

19.5

Allocation of Resources.

 

75

 

 

 

 

 

 

 

 

19.6

Disaster Recovery and Business Continuity Plans.

 

75

 

 

 

 

 

 

 

 

19.7

Force Majeure Limits.

 

75

 

 

 

 

 

 

 

 

19.8

Alternate Source.

 

75

 

 

 

 

 

 

 

 

19.9

Excused Performance.

 

76

 

 

 

 

 

20.

 

DISPUTE RESOLUTION

 

76

 

 

 

 

 

 

 

 

20.1

Dispute Resolution Procedures.

 

76

 

 

 

 

 

 

 

 

20.2

Informal Dispute Resolution.

 

76

 

 

 

 

 

 

 

 

20.3

Immediate Relief.

 

76

 

 

 

 

 

 

 

 

20.4

Escalation.

 

77

 

 

 

 

 

 

 

 

20.5

Continued Performance.

 

77

 

 

 

 

 

 

 

 

20.6

Governing Law and Jurisdiction.

 

77

 

 

 

 

 

 

Master Services Agreement

vi

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

21.

 

GENERAL

 

77

 

 

 

 

 

 

 

 

21.1

Binding Nature of Assignment; Divestments.

 

77

 

 

 

 

 

 

 

 

21.2

Amendment.

 

78

 

 

 

 

 

 

 

 

21.3

Compliance with Laws and Regulations.

 

78

 

 

 

 

 

 

 

 

21.4

Non-Solicitation; Non-Compete

 

83

 

 

 

 

 

 

 

 

21.5

Notices.

 

83

 

 

 

 

 

 

 

 

21.6

Counterparts.

 

84

 

 

 

 

 

 

 

 

21.7

Headings.

 

84

 

 

 

 

 

 

 

 

21.8

Relationship of Parties.

 

84

 

 

 

 

 

 

 

 

21.9

Severability.

 

85

 

 

 

 

 

 

 

 

21.10

Consents and Approvals.

 

85

 

 

 

 

 

 

 

 

21.11

Waiver of Default; Cumulative Remedies.

 

85

 

 

 

 

 

 

 

 

21.12

Survival.

 

85

 

 

 

 

 

 

 

 

21.13

Public Disclosures.

 

85

 

 

 

 

 

 

 

 

21.14

Service Marks.

 

86

 

 

 

 

 

 

 

 

21.15

Third Party Beneficiaries.

 

86

 

 

 

 

 

 

 

 

21.16

Covenant of Good Faith.

 

86

 

 

 

 

 

 

 

 

21.17

Due Diligence Prior to Contract Signing.

 

86

 

 

 

 

Master Services Agreement

vii

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

TABLE OF SCHEDULES

 

Schedules

Titles

Schedule 1

Definitions

Schedule 2

Intentionally Blank

Schedule 3

T-Mobile Policies and Procedures

Schedule 4

Termination Assistance

Schedule 5

Benchmarking

Schedule 6

Regulatory Compliance

Schedule 7

Security

Schedule 8

Governance

Schedule 9

Provider-Owned Work Product

Schedule 10

Pro Forma Escrow Agreement

 

 

 

 

Master Services Agreement

viii

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

TELECOM MASTER SERVICES AGREEMENT

This Telecom Master Services Agreement (this “Agreement”) is entered into this 23rd day of June, 2015 (the “Effective Date”) by and between Inteliquent, Inc., a Delaware corporation having its principal place of business at 550 West Adams Street, Suite 900, Chicago Illinois 60661 (“Provider”), and T-Mobile USA, Inc., a Delaware corporation having its principal place of business at 12920 SE 38th St., Bellevue, WA 98006 (“T-Mobile”). Provider and T-Mobile are referred to collectively as the “Parties,” and each individually as a “Party.”

This Agreement consists of these general terms and conditions (“GTCs”), the Service Attachment(s) (“SAs”) listed below, and any Order made to order Services out of an SA. No SA shall be effective unless executed by both Provider and T-Mobile.

 

Service Attachments

 

Start Date

 

End Date

 

TM File ID/Date

 

 

 

 

 

 

 

PSTN Services Attachment

 

06/23/2015

 

 

 

 

 

IN WITNESS WHEREOF, in consideration for the mutual promises set forth in the Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned have executed this Agreement by their duly authorized representatives as of the date first written above.

 

INTELIQUENT, INC.

 

T-MOBILE USA, Inc.

 

 

 

 

 

 

 

By:

 

/s/ David Lopez

 

By:

 

/s/ J. Braxton Carter

Name:

 

David Lopez

 

Name:

 

J. Braxton Carter

Title:

 

SVP of Global Sales

 

Title:

 

CFO

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


T-Mobile Confidential

 

1.

Definitions 

 

1.1

Certain Definitions.

As used in this Agreement, capitalized terms will have the meanings set forth in Schedule 1 (Definitions) hereto.

 

1.2

Other Terms.

Capitalized terms used in this Agreement but not defined in Schedule 1 (Definitions) hereto are defined in the context in which they are used and will have the meanings there indicated.

2.

Background and Objectives

 

2.1

Background and Objectives.

 

(a)

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

 

(b)

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

 

(c)

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

 

2.2

Construction.

The provisions of Section 2.1 (Background and Objectives) are intended only to be a general introduction to this Agreement, and are not intended to expand the scope of the Parties’ obligations under these GTCs or the SAs or to alter the plain meaning of the terms and conditions of these GTCs or the SAs. However, to the extent the terms and conditions of these GTCs or the SAs do not address a particular circumstance or are otherwise unclear or ambiguous, such terms and conditions are to be interpreted and construed so as to give full effect to the provisions of Section 2.1 (Background and Objectives). Whenever the singular form is used in these GTCs or an SA and when required by the context, the same includes the plural and vice versa, and the masculine gender includes the feminine and neuter genders and vice versa. Each Party signing this Agreement acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter.

 

Master Services Agreement

2

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

3.

Agreement Structure, Interpretation and Enforceability 

 

3.1

Agreement Structure.

 

(a)

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

 

(b)

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

 

3.2

Interpretation of Documents.

Unless otherwise specifically agreed to in writing in an SA, if there is any inconsistency between these GTCs, the SAs, the Orders or the Schedules, the order of priority for purposes of construction is, in descending order:

 

(a)

these GTCs;

 

(b)

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

 

(c)

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

In addition, to the extent that under law, Provider’s filed and effective tariffs apply, they will only do so to the extent that there is no conflicting provision in these GTCs, the applicable SA or an Order.

 

Master Services Agreement

3

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

3.3

T-Mobile Parent and T-Mobile Affiliates. 

Provider acknowledges that T-Mobile Parent has entered into this Agreement for its own benefit and for the benefit of its Affiliates and that these GTCs as well as each SA are intended to be and are enforceable by both T-Mobile Parent as well as any Affiliate of T-Mobile that executes the respective SA for the benefit of T-Mobile Parent. In the event an Affiliate of T-Mobile Parent executes an SA, T-Mobile Parent will be deemed to be a third party beneficiary of such SA, with full rights to enforce the terms thereunder directly against Provider; provided, however, that Provider will have full rights to enforce the terms thereunder directly against T-Mobile.

 

3.4

Parent Guaranty; Joint and Several Liability.

Provider Parent will enter into these GTCs and each SA on behalf of itself and those of its operating Affiliates that provide Services hereunder. Provider Parent hereby guarantees the payment and performance of each of Provider Parent’s Affiliate’s obligations under each of the SAs.

 

3.5

Entire Agreement.

This Agreement is the complete agreement between the parties concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, warranties (express or implied) or covenants which are not specified herein, and each of the parties acknowledges and agrees that in entering into this Agreement, it has not relied upon any representations, warranties, covenants or assertions of any kind not specifically set forth in this Agreement. This Agreement does not create any obligations on behalf of T-Mobile or any T-Mobile Affiliate to purchase any products, Deliverables or Services offered by Provider. Any such purchases will be evidenced by an SA in accordance with these GTCs. This Agreement may be executed by original, facsimile, or electronic signatures (complying with the U.S. Federal ESIGN Act of 2000, 15 U.S.C. 96) and in any number of counterparts that will be considered one instrument. Counterparts, signed facsimile and electronic copies of this Agreement will legally bind the Parties to the same extent as original documents.

4.

Services and Deliverables

 

4.1

Provision of Services and Deliverables.

 

(a)

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

 

(b)

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

 

Master Services Agreement

4

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(c)

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

 

(d)

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

 

(e)

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

 

Master Services Agreement

5

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

4.2

Project Management.

Provider shall implement a Project management process, which shall interface with and link to T-Mobile’s Project management process, to verify that, throughout the implementation and management cycle, applicable technical groups and representatives from T-Mobile are involved in the design and implementation of all Services at no additional cost to T-Mobile. Key activities to be performed, to the extent related to the provision or use of the Services and Deliverables or any Orders under an SA, include:

 

(a)

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

 

Master Services Agreement

6

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(b)

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

 

(c)

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

 

(d)

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

 

(e)

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

 

(f)

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

 

(g)

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

 

(h)

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

 

4.3

Provision of Services to Affiliates.

During the Term of an SA, Provider will provide the Services to T-Mobile and to those Affiliates of T-Mobile designated by T-Mobile from time-to-time. For purposes of the applicable SA, Services provided to T-Mobile’s Affiliates referenced herein will be deemed to be Services provided to T-Mobile, and T-Mobile’s Affiliates or other third parties will be deemed third party beneficiaries to the applicable SA with full rights of enforcement; provided, however, that Provider will have full rights of enforcement against any such third party beneficiary.

 

4.4

New Services and Orders; Future SAs.

 

(a)

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

 

Master Services Agreement

7

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(b)

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

 

(c)

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

 

(d)

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

 

(e)

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

 

4.5

Processing of Service Orders under Existing SAs.

 

(a)

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

 

Master Services Agreement

8

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(b)

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

 

(c)

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

 

(d)

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

 

4.6

Acceptance of Services and Deliverables.

The Deliverables provided under an SA or Order entered into pursuant thereto shall be subject to testing and verification of acceptability by T-Mobile in accordance with the Acceptance Procedures set forth in Schedule 8 (Governance), as well as such additional acceptance procedures as may be specified in the applicable SA(s) or Order(s).

 

4.7

Transition Services.

 

(a)

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

 

Master Services Agreement

9

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

performance of tasks designated in the Transition Plan as T-Mobiles responsibility. The Transition Plan is to include transformational activities, such as any facility consolidations or relocations, migrations of services to Provider facilities, etc. The Transition Services will at all times be performed in conformance with Best Practices, in a manner that: (i) transitions the Services successfully, on or before the applicable Transition Milestone Date; (ii) when feasible, minimizes T-Mobiles internal costs with respect to such transition; (iii) establishes communication lines and network connections, Equipment, Software, tapes, records and supplies as necessary for successful transition of the Services; (iv) develops and implements a communication plan, with T-Mobiles approval, for T-Mobile, its customers and third party contractors; and (v) puts into effect the Service Levels specified for the Services post implementation. 

 

(b)

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

 

(c)

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

 

Master Services Agreement

10

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(d)

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

 

(i)

assigning additional resources;

 

(ii)

replacing ineffective resources;

 

(iii)

having existing resources work additional hours;

 

(iv)

deploying new tools to support the work; and

 

(v)

rearranging the work to overcome constraints.

 

(e)

Failure to Meet Transition Milestones.

 

(i)

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

 

(ii)

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

 

(f)

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

 

Master Services Agreement

11

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(g)

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

 

(h)

Completion and Acceptance of Transition.

 

(i)

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

 

(ii)

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

 

(iii)

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

 

Master Services Agreement

12

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(iv)

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

 

(1)

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

 

a.

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

 

b.

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

 

c.

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

 

(2)

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

 

4.8

Network Connectivity

 

(a)

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

 

(b)

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

 

Master Services Agreement

13

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

decreased in order to be sufficient to facilitate the performance of the Parties obligations with respect to the Services in conformance with the quality, cost and efficiency requirements set forth in this Agreement; and (iii) without limitation to the foregoing, provide failover and redundancy in conformance with Best Practices. The foregoing provision is subject to T-Mobile complying with any request by Provider to augment, decrease or establish additional Connectivity Facilities necessary for Provider to meet its obligations.  

 

4.9

Governmental Approvals and Consents.

 

(a)

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

 

(b)

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

 

(c)

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

 

4.10

Knowledge Sharing.

 

(a)

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

 

(i)

explain how the Services are provided;

 

(ii)

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

 

(iii)

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

 

(1)

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

 

(2)

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

 

Master Services Agreement

14

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(b)

Upon T-Mobiles request from time to time, Provider will provide to T-Mobile a sufficiently detailed description of the environmental configuration in respect of the Services under an SA, including information regarding Equipment, Software, staffing, operating environment, systems constraints, protocols, interfaces, architecture and other operating parameters to the extent that such description is relevant to T-Mobiles use of the Services and Deliverables. 

 

4.11

Quality Control.

Provider has established, and during the Term and any Termination Assistance Period will maintain, a quality control system for the Services provided under this Agreement to ensure that the Services meet or exceed the Service Levels. Upon request by T-Mobile, Provider will permit T-Mobile to review procedures, practices, processes and related documents and reports to determine such acceptability and will incorporate such procedures, practices, processes and related documents in the Procedures Manual.

 

4.12

Service Locations.

 

(a)

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

 

(i)

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

 

(ii)

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

 

(b)

Physical Safety, Environmental and Security Procedures.

 

(i)

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

 

Master Services Agreement

15

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(ii)

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

5.

Term

 

5.1

Term of the GTCs, SAs, and Orders.

The initial term of these GTCs will begin on the Effective Date and will continue for a period of three (3) years after the end of the Transition Period, or until the last scheduled expiration of any SAs then in effect, unless these GTCs is terminated earlier or extended in accordance with the terms provided hereinafter. Each SA will begin on the SA Effective Date set forth therein and will continue until the expiration or termination of these GTCs, unless an alternate expiration date is provided therein, or unless the SA is terminated earlier or renewed in accordance with any terms provided hereinafter. Each Order will commence on the Order Effective Date set forth therein, and will terminate upon conclusion of the applicable SA, unless earlier terminated pursuant to the terms of such Order. “Term” refers to both the initial term of these GTCs and the SAs, as applicable, and any renewal thereof in accordance with Section 5.2 (Extensions of Term).

 

5.2

Extensions of Term.

Unless Provider provides written notice to T-Mobile terminating these GTCs at least 90 days prior to the expiration of the initial three-year Term, T-Mobile will have the option to renew these GTCs for successive one (1)-year renewal terms by delivering written notice of such renewal to Provider at least thirty (30) days before the then-scheduled expiration of the Term. All of the terms and conditions of these GTCs will continue to apply without change during any extension or renewal of the Term.

 

5.3

Termination by T-Mobile.

 

(a)

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

 

(i)

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

 

(ii)

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

 

(iii)

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

 

(iv)

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

 

Master Services Agreement

16

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(v)

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

 

(b)

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

 

(c)

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

 

(d)

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

 

Master Services Agreement

17

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

5.4

Termination by Provider. 

Provider may, at its election, terminate an SA upon a material uncured payment default with respect to undisputed amounts owed under such SA by T-Mobile that continues after expiration of the Cure Period under Section 7.3 (Payment Due). For the avoidance of doubt, to the extent that T-Mobile withholds payment under any SA that T-Mobile disputes in good faith, such withholding will not give Provider a termination right hereunder, or permit Provider to delay or withhold performance of any Services. In addition, Provider may terminate these GTCs upon the occurrence of any uncured Material Breach by T-Mobile or if any proposed change in applicable Laws has or will have a material adverse effect on Provider under this Agreement or Provider’s ability to provide the Services.

 

5.5

Cross-Termination.

In the event that any SA is terminated as permitted herein, in whole or in part, by T-Mobile under Section 5.3(a) (T-Mobile Termination Rights), then T-Mobile may, by giving written notice to Provider terminate any then current SA without any liability to Provider except for payment for Services actually rendered through the effective date of termination.

 

5.6

Return of Property.

Within 10 days of termination of this Agreement, Provider will deliver to T-Mobile any and all property of T-Mobile and T-Mobile Affiliates that is in Provider’s possession or control.

 

5.7

Fraud Prevention Assistance.

Provided that the costs are commercially reasonable, Provider shall, at no additional charge to T-Mobile, cooperate with T-Mobile to prevent and eliminate third-party fraud and implement fraud prevention measures designed by T-Mobile, agreed to by Provider and documented in a Schedule to be attached to the relevant SA, that Provider is capable of implementing, including, not limited to, the interception of outbound calls to designated numbers with a message requiring the caller to take an action to complete the call.

 

5.8

Termination/Expiration Assistance.

Commencing upon or within six (6) months prior to the termination or expiration of these GTCs, an applicable SA, an Order, or any portion of the foregoing, T-Mobile may request, and Provider will provide to T-Mobile, the Termination Assistance Services requested by T-Mobile to allow the Services to continue without interruption or adverse effect and to facilitate the orderly transfer of the Services to T-Mobile or its Designees, as further described below. If the applicable termination right is exercised by T-Mobile due to a Material Breach pursuant to the terms of Section 5.3(a) (T-Mobile Termination Rights), then without limitation to T-Mobile’s other rights or remedies for such Material Breach under Section 5.3(b) (Rights and Remedies for Material Breaches). T-Mobile will continue to pay the Charges for the Services and Deliverables provided during the Transition Period. Provider will perform all Termination Assistance Services at no Charge to T-Mobile.

 

Master Services Agreement

18

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(a)

Termination Assistance Services. As part of the Services, and for the Charges set forth in Sections 5.3(a)(ii) and (d), Provider shall provide to T-Mobile or T-Mobiles Designee the Termination Assistance Services described in Section 5.8(b). 

 

(i)

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

 

(ii)

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

 

(iii)

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

 

(iv)

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

 

Master Services Agreement

19

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(b)

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

 

(i)

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

 

(ii)

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

 

(c)

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

 

(i)

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

 

(ii)

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

 

Master Services Agreement

20

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(iii)

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

 

(iv)

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

 

Master Services Agreement

21

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

(v)

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

 

(d)

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

6.

Charges

 

6.1

General.

All Charges for the Services, including, but not limited to, Transition Services will be set forth in the Pricing Schedule of the respective SA. T-Mobile will not be required to pay Provider any amounts for the Services in excess of or in addition to those payable to Provider under the Pricing Schedule of the respective SA.

 

6.2

Reimbursable Expenses.

Provider will be responsible for any and all costs and expenses incurred in its performance and provision of the Services and Deliverables under the SAs, except for such Reimbursable Expenses as are specifically listed in the Pricing Schedule of the applicable SAs or Orders; without limitation to its obligations under the foregoing, Provider will, at its sole cost and expense, furnish all Facilities, Equipment and Software required to perform the Services in compliance with Best Practices, except to the extent that the provision of the Facilities, Equipment or Software is expressly a responsibility of T-Mobile under an SA or an Order. If the Parties explicitly agree that a particular Pass-Through Expense (or third party component of a Markup Expense) is to

 

Master Services Agreement

22

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

be paid by T-Mobile directly, Provider will promptly provide T-Mobile with the original third-party invoice for such expense together with a statement that Provider has reviewed the invoiced charges and made a determination of which charges are proper and valid and should be paid by T-Mobile.

 

6.3

Taxes.

The Parties’ respective responsibilities for taxes arising under or in connection with these GTCs and any associated SAs and Orders will be as follows:

 

(a)

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

 

(b)

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

 

(c)

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

 

Master Services Agreement

23

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

T-Mobile for such Surcharge; (b) T-Mobile shall timely remit such Surcharge to Provider; and (c) Provider shall timely remit such collected Surcharge to the applicable governmental authority as required by applicable Law. Provider may only pass through a Surcharge to the extent that the Surcharge is also imposed on similarly situated customers. Provider shall indemnify, defend and hold T-Mobile harmless from and against any and all charges, claims, causes of action, penalties, costs (including, without limitation, reasonable attorneys fees) and any other liabilities of any nature whatsoever related hereto with respect to any failure by Provider to meet its obligations under this paragraph. 

 

(d)

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

 

(e)

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

 

(f)

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

 

Master Services Agreement

24

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

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

 

6.4

Charges for New Services.

In the event that T-Mobile requests Provider to perform New Services that are not contemplated by the then-current Orders or SAs, the Parties’ obligations with respect to such New Services will be as follows:

 

(a)

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

 

(i)

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

 

(ii)

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

 

(b)

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

 

(c)

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

 

(d)

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

 

Master Services Agreement

25

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

6.5

Extraordinary Events.  

If an Extraordinary Event occurs, T-Mobile may, at its option, request more favorable pricing with respect to some or all of the Charges in accordance with the following:

 

(a)

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

 

(b)

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

 

(c)

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

7.

Invoicing and Payment

 

7.1

General.

In consideration for the performance of the Services specified in each Order or SA, T-Mobile will pay the Charges in accordance with the terms and conditions set forth below.

 

7.2

Invoicing.

Provider will invoice T-Mobile for amounts due under the applicable Order or SA on a monthly basis in arrears. Provider will render a single consolidated invoice for each month’s Charges to the contact specified in the applicable Order or SA. The invoice will show details as to Charges as specified by T-Mobile, including such details are as set forth in the Pricing Schedule of the respective Order or SA, and will be in the form prescribed in the Pricing Schedule. The Parties agree that their preference is for electronic transmission of Invoices and payments. Payments shall be transmitted, at T-Mobile’s option, by electronic funds by means of T-

 

Master Services Agreement

26

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

Mobiles electronic payment vendor, currently AribaPay and Discover Paymode. Provider is able to receive payments via such vendors. If necessary, the Parties shall reasonably cooperate to change electronic payment vendors or other electronic payment procedures. Notwithstanding anything to the contrary elsewhere in this Section 7 (Invoicing and Payment), Charges not invoiced within 120 days following the end of the month in which they were incurred will be deemed as waived by Provider. Charges not disputed by T-Mobile within 120 days of receipt of invoice will be deemed accepted by T-Mobile. Provider will include the calculations utilized to establish the Charges. Unless otherwise specified in these GTCs or the applicable Order, SA, or in any validly executed change order or other amendment, the Charges described in these GTCs, the SAs, the Orders and the Pricing Schedules comprise all of the Charges payable by T-Mobile for the Services and Deliverables. Notwithstanding anything to the contrary elsewhere in this Section 7 (Invoicing and Payment), if Provider submits [* * *] invoices in any [* * *] month period that materially violate the terms set forth in this Section 7 (Invoicing and Payment) or the Pricing Schedule or that contain material errors (each an Erroneous Invoice), then, for a period of [* * *] following receipt of the second (2nd) Erroneous Invoice (the Penalty Period): (a) all under-Charges in any invoice submitted during the Penalty Period (or any Charges that should have been charged during the Penalty Period but for Providers failure to submit a timely invoice for such Charges in compliance with this Section 7.2 (Invoicing)) will be deemed as waived; and (b) any invoice submitted by Provider during the Penalty Period containing overcharges will only be payable after the re-submission of a correct invoice pursuant to this Section 7.2 (Invoicing) but subject to a [* * *] discount thereof. For avoidance of doubt, a new Penalty Period will resume following the submission of any incorrect invoice during a prior Penalty Period. Illustrative, non-limiting examples of Erroneous Invoices are set forth below. During any Penalty Period:

 

(a)

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

 

(b)

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

 

7.3

Payment Due.

Each invoice will be due and payable in U.S. Dollars within thirty (30) days after receipt of such invoice, provided that if such due date is not a business day, then payment for such invoice is due on the next business day following such date. Provider may notify T-Mobile of any breach of its payment obligations under an invoice, and, subject to the terms of Section 7.7 (Disputed Charges) hereof, T-Mobile will have [* * *] days after receipt of such notice to cure such breach (the “Cure Period”). Any payments for undisputed amounts (“Amounts Due”) not cured within the Cure Period will bear interest at a rate to equal the lesser of (a) an annualized rate of LIBOR as of January 1 of the applicable calendar year, plus two percent (2%), or (ii) the maximum rate of interest allowed by applicable Law (“Interest”).

 

Master Services Agreement

27

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

7.4

Accountability. 

Provider will maintain complete and accurate records of, and supporting documentation for, the amounts billable to and payments made by T-Mobile hereunder, in accordance with United States generally accepted accounting principles applied on a consistent basis. Provider agrees to provide T-Mobile with documentation and other information with respect to each invoice as may be reasonably requested by T-Mobile to verify accuracy and compliance with the provisions of these GTCs and the applicable SA. After providing reasonable advance notice, T-Mobile and its authorized agents and representatives, subject always to non-disclosure and non-use requirements, will have access to such records for purposes of audit during normal business hours during the Term and during the period for which Provider is required to maintain such records pursuant to Section 12 (Audits).

 

7.5

Proration.

Periodic Charges under these GTCs and the SAs are to be computed on a calendar month basis, and will be prorated for any partial month.

 

7.6

Set-Off.

With respect to any amount to be paid by T-Mobile under an SA,
T-Mobile may set off against such amount any undisputed amount that Provider is obligated to pay or to credit T-Mobile under these GTCs or the applicable SA. For the avoidance of doubt, the foregoing provision of this Section 7.6 (Set-Off) will not limit the rights of T-Mobile pursuant to Section 7.7 (Disputed Charges). Likewise, if T-Mobile fails to pay an undisputed amounts when due, Provider may set off such amount against amounts it is obligated pay or credit T-Mobile.

 

7.7

Disputed Charges.

T-Mobile may withhold payment of particular Charges that T-Mobile disputes in good faith (“Disputed Amount”), pending the resolution of such dispute; provided, however, that T-Mobile will provide notice when it withholds an amount under this Section by the applicable due date. Once a dispute regarding payment is resolved, that portion of the Disputed Amount determined to be appropriate Charges will be due and payable in accordance with Section 7.3 (Payment Due), as if the invoice for such Charges has been received on the date of such resolution. Likewise, if T-Mobile does not withhold an amount but later timely disputes it, and the dispute is resolved in T-Mobile’s favor, no interest will apply to the amount credited to T-Mobile.

8.

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

 

8.1

Most-Favored Customer.

If Provider offers a bundle of services to any entity that is substantially similar to any bundle of Services provided under an applicable SA or an Order, including time and volume commitments, volume of services actually utilized, payments made and credits (other than Service Level Credits) provided by Provider to T-Mobile, and traffic profile, and such bundled Services are offered or provided to such third party at a greater aggregate economic benefit than that provided to T-Mobile, then T-Mobile will receive the aggregate economic benefit as such other entity, effective retroactively to the date such services were first provided to the other entity at such greater aggregate economic benefit. Provider will certify compliance with this provision in writing annually by a senior officer of Provider and, if requested by T-Mobile, will fully cooperate (including

 

Master Services Agreement

28

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

by providing access to required pricing information) with an independent third party engaged by T-Mobile to confirm compliance with this provision (subject to such third party executing an appropriate non-disclosure and non-use agreement, including non-solicitation and security requirements). In the event that Provider fails to provide such annual certification when requested, or an audit reveals that Provider has not complied with the foregoing provision, Provider will pay all charges and costs associated with the audit, as well as those associated with the next subsequent annual audit.

 

8.2

Benchmarking.

T-Mobile has the right to conduct a measurement and comparison benchmarking process to compare the Services to industry standards (the Benchmarking Process). T-Mobile may utilize any entity generally in the business of conducting such measurements and comparisons to perform the Benchmarking Process (the Benchmarker). Provider’s cooperation with the Benchmarker shall be conditioned on the Benchmarker’s compliance with Provider’s reasonable confidentiality, non-solicitation and security requirements. For the avoidance of doubt, this Section 8.2 (Benchmarking) shall apply only with respect to Service quality and shall not measure or result in any impact or adjustment to the Charges and other pricing provisions in the applicable SA.

 

8.3

Continuous Improvement and Best Practices.

 

(a)

Baseline Customer Satisfaction Survey. During the 180 day period after the Effective Date and as part of the Services, Provider shall conduct a baseline customer satisfaction survey as approved by T-Mobile for affected individuals designated by T-Mobile. This survey must be of the content and scope designated by T-Mobile. Provider must administer the survey pursuant to the procedures agreed upon by Customer and Provider within 180 days after the Effective Date. The survey conducted pursuant to this Section 8.3 (Continuous Improvement and Best Practices) will constitute the baseline for measurement of performance improvements described in Section 8.2 (Benchmarking).

 

(b)

Customer Satisfaction Survey. Upon request by T-Mobile, but in any event not more frequently than once every six (6) months, Provider must, as part of the Services, conduct a customer satisfaction survey. The survey shall be submitted to up to twenty (20) individuals to be designated by T-Mobile; provided, however, that Provider shall not be required to ensure that such individuals respond to the survey. Upon request, Provider must also conduct a similar survey of the senior managers of T-Mobile that focuses on satisfaction with the functional interface among T-Mobile, Provider and other vendors of T-Mobile who interact with Provider. The content, scope, method and timing of the above surveys are subject to T-Mobile’s prior approval, and must be generally consistent with the baseline customer survey conducted pursuant to Section 8.3(a) (Baseline Customer Satisfaction Survey). Within 30 days prior to the completion of the Transition Services, the parties shall agree upon desired T-Mobile satisfaction Levels (the T-Mobile Satisfaction Levels). Throughout the Term, Provider shall use commercially reasonable efforts to increase customer satisfaction up to the T-Mobile Satisfaction Levels. Each of T-Mobile and Provider may request negotiations to review and adjust the T-Mobile Satisfaction Levels not more than twice during each calendar year.

 

Master Services Agreement

29

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(c)

Best Practices. Under each SA, Provider will, at its sole cost and expense, cause the Services and Deliverables, as approved by T-Mobile, to evolve and to be modified, enhanced, supplemented and replaced as necessary for conformance with Best Practices, to the extent such Best Practices evolve during the Term, pursuant to the terms provided in these GTCs and in the applicable SAs. Adjustments to the Services and Deliverables in accordance with this Section 8.3(c) (Best Practices) will be deemed to be included within the scope of the Services and Deliverables to the same extent and in the same manner as if expressly described in these GTCs and the applicable SA. 

 

(d)

Provider will, on a continuous basis, (i) as part of its total quality management process, identify ways to improve the quality of the Services (if any such ways exist), and continuously and incrementally improve its performance of the Services provided under the Agreement consistent with services similar in scope, scale and geographic coverage, to the extent such improvement is possible, and (ii) without violating its non-disclosure obligations owed to a third party or a third party’s proprietary rights, identify and apply proven techniques and tools from other installations within its operations (to the extent any exist and are not already being applied) that would benefit T-Mobile either operationally or financially.

 

(e)

Annually, Provider will identify for T-Mobile any technologies and best practices that have emerged (within Provider’s organization or within the market generally), that, if implemented by T-Mobile (or by Provider on Customer’s behalf), would materially benefit T-Mobile in terms of price reductions or performance improvement or that would reduce T-Mobile’s costs (excluding amounts paid hereunder). If requested by T-Mobile, within sixty (60) days, Provider will provide T-Mobile with proposals for the implementation of such technology or technologies or best practices in a manner consistent with the Service Change Procedures and this Section.

9.

Safeguarding of Data; Confidentiality

 

9.1

T-Mobile Confidential Information and Personal Information.

 

(a)

T-Mobile Confidential Information. T-Mobile Confidential Information is, and shall remain, the exclusive property of T-Mobile. T-Mobile Confidential Information will not be utilized by Provider for any purpose other than providing the Services under these GTCs and the Orders or SAs, nor will T-Mobile Confidential Information or any part thereof, be sold, assigned, leased, disclosed, or otherwise disposed of to third parties by Provider or commercially exploited by or on behalf of Provider, Services Personnel or other employees or agents. T-Mobile Confidential Information will be treated by Provider as strictly confidential and will not be disclosed by Provider, in any manner, except as permitted by these GTCs and the SAs and the written instructions of T-Mobile or as required by law, including applicable Securities Laws. T-Mobile Confidential Information that includes Personal Information will be handled as provided in Section 9.1(b) (Personal Information) below. If Provider has access to any de-identified data or where Provider performs a de-identification of T-Mobile Information, Provider warrants that it will not re-identify the data with any personally identifiable data or otherwise perform functions that would re-identify the data. Provider will ensure that any

 

Master Services Agreement

30

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

third parties to whom the data is provided will agree to this provision. Except (i) as otherwise provided with respect to Personal Information under Section 9.1(b) (Personal Information), (ii) under Schedule 6 (Regulatory Compliance), or (iii) as otherwise required under applicable Laws, the T-Mobile Confidential Information will be archived, returned, or destroyed (in a manner designated by T-Mobile) by Provider, in accordance with T-Mobiles written directions or data and records retention policies and instructions (as such policies may be provided by T-Mobile to Provider and updated from time-to-time) upon:  

 

(i)

request by T-Mobile,

 

(ii)

the expiration / termination of these GTCs, or

 

(iii)

with respect to particular T-Mobile Confidential Information, upon

 

(1)

the termination of any SAs or Orders that utilize such T-Mobile Confidential Information, or

 

(2)

if such T-Mobile Confidential Information is no longer required by Provider in order to provide the Services.

 

(b)

Personal Information. All Personal Information is, and shall remain, the exclusive property of T-Mobile. Provider may collect, access, use, maintain and disclose Personal Information only to fulfill its performance obligations under the MSA and SAs and only for the specific purpose for which such Personal Information is collected, stored or processed by Provider under the foregoing instruments. Provider may not otherwise modify the Personal Information, merge it with other data, commercially exploit it, disclose it or undertake any other activity that may in any manner adversely affect the integrity, security or confidentiality of such information, other than as expressly specified herein or in the SAs or as directed by T-Mobile in writing. T-Mobile makes no representation or warranty as to the accuracy or completeness of the Personal Information, and Provider agrees that T-Mobile, its employees and agents will have no liability to Provider resulting from any of Provider’s use of the Personal Information. Provider acknowledges and agrees that, without limiting any other obligations applicable to Personal Information hereunder, all Personal Information is Confidential Information of T-Mobile and none of the exclusions in Section 9.4(c) (Exclusions) will prevent such Personal Information from being Confidential Information.

 

9.2

Safeguarding T-Mobile Confidential Information.

 

(a)

Information Security Measures. Provider shall implement and maintain at all times appropriate measures (“Information Security Measures”) designed, whether specific to T-Mobile Confidential Information or confidential information generally, to: (i) ensure the security and confidentiality of T-Mobile Confidential Information; (ii) identify potential threats or hazards to the security or integrity of T-Mobile Confidential Information and protect against any anticipated threats or hazards; and (iii) protect against unauthorized access to or use of T-Mobile Confidential Information. The Parties will mutually update

 

Master Services Agreement

31

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

the Information Security Measures from time to time during the Term as necessary to align with then-current industry standards. Compliance with such policies will not otherwise relieve Provider of its duties to protect the T-Mobile Information or the other Confidential Information of T-Mobile. Without limiting the generality of the foregoing, the Information Security Measures: (A) will provide for continual assessment and re-assessment of the risks to the security of T-Mobile Confidential Information acquired or maintained by Provider and the Subcontractors in connection with the Services, including but not limited to (1) the identification of internal and external threats that could result in unauthorized disclosure, alteration or destruction of T-Mobile Confidential Information and systems used by Provider and its Subcontractors, (2) the assessment of the likelihood and potential damage of such threats, taking into account the sensitivity of T-Mobile Confidential Information, and (3) the assessment of the sufficiency of policies, procedures, information systems of Provider and its Subcontractors, and other arrangements in place, to control risks; (B) will provide appropriate protection against such risks, including but not limited to, maintaining Information Security Measures that meet the highest standards to safeguard information, including the then-current Best Practices, and compliance with the highest applicable information security specifications; and (C) will be updated by the Parties from time to time as necessary to align with then-current industry standards, and at minimum, consistent with and no less stringent than those maintained by T-Mobile as of the Effective Date, or as later prescribed by T-Mobile (upon reasonable written notice to Provider), and will be no less rigorous than those maintained by Provider for its own information of a similar nature. T-Mobile shall have the right to establish backup security for T-Mobile Confidential Information and to keep backup data and data files in its possession if it chooses. For the avoidance of doubt, the provisions of this Section 9 (Safeguarding of Data; Confidentiality) shall not be deemed to limit Providers obligations under Schedule 7 (Security). 

 

(b)

Additional Obligations. Without limiting the generality of the foregoing:

 

(i)

Access to all T-Mobile Confidential Information, T-Mobile Confidential Information and/or any other records of T-Mobile will be subject to the data records and security procedures set forth in Schedule 7 (Security);

 

(ii)

All T-Mobile Confidential Information, T-Mobile Confidential Information and/or any other records of T-Mobile will physically reside in the United States at all times during the Term;

 

(iii)

Services Personnel shall not attempt to access, or allow access to, any T-Mobile Confidential Information, files or programs within the information systems environment to which they are not entitled under these GTCs, the SAs, or any Orders. Only those Services Personnel whose work necessitates access to T-Mobile Confidential Information will have access to such data. If access by other persons is attempted or attained, Provider shall immediately report such incident to T-Mobile, describe in detail any accessed materials and return to T-Mobile any copied or removed T-Mobile Confidential Information, files or programs; and

 

Master Services Agreement

32

 

[* * *] The confidential content of this Exhibit 10.1 has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 


T-Mobile Confidential

 

 

(iv)

Provider shall institute systems security measures in compliance with Best Practices to guard against the unauthorized access, alteration, misuse or destruction of Software and T-Mobile Confidential Information. Such measures will include the installation of Software that: (A) requires all Services Personnel to enter an identification number and password prior to gaining access to the information systems; (B) controls and tracks the addition and deletion of Services Personnel accessing such information systems; (C) controls user access to areas and features of the systems; and (D) logs all instances of user access to the information systems.  

 

9.3

Security Breaches.

Provider represents and warrants that: (a) it and its subcontractors’ networks, systems and premises, including any third-party data center(s) utilized by Provider (collectively, the “Provider Systems”), have not suffered any actual, probable or reasonably suspected breach of any safeguards or of any other actual, probable or reasonably suspected unauthorized access to, or acquisition, use, loss, destruction, compromise or disclosure of, any information maintained on the Provider Systems prior to the date hereof (each, a “Security Breach”); or (b) if the Provider Systems have suffered one or more Security Breaches, that Provider has disclosed each Security Breach to T-Mobile. Provider represents and warrants that Provider is not, and has not been, a party to any current, pending, threatened or resolved enforcement action of any government agency, or any consent decree or settlement with any governmental agency or private person or entity regarding any Security Breach or otherwise regarding data or information security. Provider will immediately notify T-Mobile of any actual, probable or reasonably suspected Security Breach related to T-Mobile Confidential Information, subject to applicable Laws. In any notification to T-Mobile required under this Section, Provider will designate a single individual employed by Provider who will be available to T-Mobile 24-hours per day, 7-days per week as a contact regarding Provider’s obligations under this Section. Provider will: (i) assist T-Mobile in investigating, remedying and taking any other action T-Mobile deems necessary regarding any Security Breach and any dispute, inquiry or claim that concerns the Security Breach; and (ii) will provide T-Mobile with assurance satisfactory to T-Mobile that such Security Breach or potential Security Breach will not recur. Unless prohibited by an applicable Law, statute or court order, Provider will also notify T-Mobile of any third-party legal process relating to any Security Breach, including, without limitation, any legal process initiated by any governmental entity (foreign or domestic).

 

9.4

Confidentiality.

 

(a)

Confidential Information. Provider and T-Mobile each acknowledge that they may be furnished with, receive, or otherwise have access to Confidential Information of the other Party.

 

(b)

Obligations and Acknowledgments.

 

(i)

Each Party’s Confidential Information will remain the property of that Party except as expressly provided otherwise by the other provisions of these GTCs, the Order or the SAs. T-Mobile and Provider shall each use at least the same degree of care, but in any event no less than a commercially reasonable degree of care consistent with Best Practices (including the highest industry standards at such time) and with all applicable Laws, to prevent disclosing to third parties the Confidential Information of the other, that it uses to avoid unauthorized

 

Master Services Agreement

33