EXHIBIT 10.7
SPRINT SPECTRUM
TRADEMARK AND SERVICE MARK
LICENSE AGREEMENT
Between
SPRINT SPECTRUM L.P.
and
SHENANDOAH PERSONAL
COMMUNICATIONS COMPANY
Dated as of November 5, 1999
Sprint Spectrum Proprietary Information - RESTRICTED
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EXHIBIT 10.7
"
SPRINT SPECTRUM TRADEMARK AND
SERVICE MARK LICENSE AGREEMENT
THIS
AGREEMENT is made as of the 5th day of November, 1999, by and
between
Sprint Spectrum L.P., a limited partnership
organized under the laws of the
State of Delaware, as licensor
("Licensor"), and Shenandoah Personal
Communications Company, a corporation
formed under the laws of Virginia, as
licensee ("Licensee"). The definitions for
this agreement are set forth on the
"Schedule of Definitions".
RECITALS:
WHEREAS,
Licensor is the owner of the U.S. trademarks and service marks
"THE CLEAR ALTERNATIVE TO CELLULAR" and
"EXPERIENCE THE CLEAR ALTERNATIVE TO
CELLULAR TODAY" and such other marks as may
be adopted and established from time
to time and the goodwill of the business
symbolized thereby; and
WHEREAS,
Licensee desires to use the trademarks and service marks in
commerce;
NOW,
THEREFORE, the parties, in consideration of the mutual
agreements
herein contained and for other good and
valuable consideration, the receipt and
adequacy of which are hereby acknowledged,
do hereby agree as follows:
ARTICLE 1
GRANT OF TRADEMARK AND SERVICE MARK RIGHTS; EXCLUSIVITY
Section
1.1. License.
(a)
Grant of
License. Subject to the terms and conditions hereof,
Licensor hereby grants to Licensee, and Licensee hereby accepts
from
Licensor, for the term of this agreement, a non-transferable,
royalty-free license to use the Licensed Marks solely for and
in
connection with the marketing, promotion, advertisement,
distribution, lease or sale of Sprint PCS Products and Services
and
Premium and Promotional Items in the Service Area.
"
(b)
Related
Equipment. The rights granted hereunder to Licensee shall
not include the right to manufacture equipment under the
Licensed
Marks. However, subject to the terms and conditions hereof,
Licensor
hereby grants to Licensee, and Licensee hereby accepts from
Licensor, for the term of this agreement, a non-transferable,
royalty-free license to market, promote, advertise, distribute
and
resell and lease Related Equipment in connection with the
marketing,
promotion, advertisement, distribution, lease or sale by Licensee
of
Sprint PCS Products and Services, and to furnish services
relating
to such Related Equipment (including installation, repair and
maintenance of Related Equipment), under the Licensed Marks.
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EXHIBIT 10.7
'"
ARTICLE 2
QUALITY STANDARDS, MAINTENANCE
Section
2.1. Maintenance of Quality.
(a)
Adherence to
Quality Standards. In the course of marketing,
promoting, advertising, distributing, leasing and selling Sprint
PCS
Products and Services and Premium and Promotional Items under
the
Licensed Marks, Licensee shall maintain and adhere to standards
of
quality and specifications that conform to or exceed those
quality
standards and technical and operational specifications adopted
and/or amended in the manner provided below ("Quality
Standards")
and those imposed by Law. Such Quality Standards are designed
to
ensure that the quality of the Sprint PCS Products and Services
and
Premium and Promotional Items marketed, promoted, advertised,
distributed, leased and sold under the Licensed Marks are
consistent
with the high reputation of the Licensed Marks and are in
conformity
with applicable Laws.
(b)
Establishment of
Quality Standards. The parties acknowledge that the
initial Quality standards for the Sprint PCS Products and
Services
and Premium and Promotional Items are attached to the
Management
Agreement as Exhibits 4.1, 4.2, 4.3, 7.2. and 8.1. The Quality
Standards shall (i) be consistent with the reputation for
quality
associated with the Licensed Marks and (ii) be commensurate with
a
high level of quality (taking into account Licensee's
fundamental
underlying technology and standards), consistent with the level
of
quality being offered in the market for products and services of
the
same kind as the Sprint PCS Products and Services.
(c)
Changes in
Quality Standards. In the event that Licensor wishes to
change the Quality Standards, it will notify Licensee in writing
of
such proposed amendments, and will afford Licensee a reasonable
time
period in which to adopt such changes as may be required in
order
for Licensee to conform to the amended Quality Standards.
Section
2.2. Rights of Inspection. In order to ensure that the Quality
Standards are maintained, Licensor and its
authorized agents and representatives
shall have the right, but not the
obligation, with prior notice to Licensee, to
enter upon the premises of any office or
facility operated by or for Licensee
with respect to Sprint PCS Products and
Services and Premium and Promotional
Items at all reasonable times, to inspect,
monitor and test in a reasonable
manner facilities and equipment used to
furnish Sprint PCS Products and Services
and Premium and Promotional Items and, with
prior written notice to Licensee, to
inspect the books and records of Licensee
in a manner that does not unreasonably
interfere with the business and affairs of
Licensee, all as they relate to the
compliance with the Quality Standards
maintained hereunder,
".
Section
2.3. Marking: Compliance with Trademark Laws. Licensee shall
cause
the appropriate designation "(TM)" or "SM,"
or the registration symbol "(R)" to
be placed adjacent to the Licensed Marks in
connection with the use thereof and
to indicate such additional information as
Licensor shall reasonably specify
from time to time concerning the license
rights under which
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EXHIBIT 10.7
Licensee uses the Licensed Marks. Licensee
shall place the following notice on
all printed or electronic materials on
which the Licensed Marks appear: "THE
CLEAR ALTERNATIVE TO CELLULAR", "EXPERIENCE
THE CLEAR ALTERNATIVE TO CELLULAR
TODAY", and such other marks as may be
adopted and established from time to
time, are trademarks and/or service marks
of Sprint Spectrum L.P., "used under
license" or such other notice as Licensor
may specify from time to time. .
Section
2.4. Other Use Restrictions. Licensee shall not use the
Licensed
Marks in any manner that would reflect
adversely on the image of quality
symbolized by the Licensed marks.
ARTICLE 3
CONFIDENTIAL INFORMATION
Section
3.1. Maintenance of Confidentiality. Each of Licensor and
Licensee
and their respective Controlled Related
Parties (each a "Restricted Party")
shall cause their respective officers and
directors (in their capacity as such)
to, and shall take all reasonable measures
to cause their respective employees,
attorneys, accountants, consultants and
other agents and advisors (collectively,
and together with their respective officers
and directors, "Agents") to keep
secret and maintain in confidence the terms
of this agreement and all
confidential and proprietary information
and data of the other party or its
Related Parties disclosed to it (in each
case a "Receiving Party") in connection
with the performance of its obligations
under this agreement (the "Confidential
Information") and shall not and shall cause
their respective officers and
directors not to, and shall take all
reasonable measures to cause their
respective other Agents not to disclose
Confidential Information to any Person
other than the parties, their Controlled
Related Parties and their respective
Agents that need to know such Confidential
Information. Each party further
agrees that it shall not use the
Confidential Information for any purpose other
than determining and performing its
obligations and exercising its rights under
this agreement. Each party shall take all
reasonable measures necessary to
prevent any unauthorized disclosure of the
Confidential Information by any of
their respective Controlled Related Parties
or any of their respective Agents.
The measures taken by a Restricted Party to
protect Confidential Infom1ation
shall be not deemed unreasonable if the
measures taken are at least as strong as
the measures taken by the disclosing party
to protect such Confidential
Information.
Section
3.2. Permitted Disclosures. Nothing herein shall prevent any
Restricted Party or its Agents from using,
disclosing, or authorizing the
disclosure of Confidential Information it
receives and which:
(i)
has been
published or is in the public domain, or which subsequently
comes into the public domain, through no fault of the receiving
party;
(ii)
prior to receipt
hereunder was property within the legitimate
possession of the Receiving Party or, subsequent to receipt
hereunder is lawfully received from a third party having rights
therein without restriction of the third party's right to
disseminate
"
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EXHIBIT 10.7
the Confidential Information and without notice of any
restriction
against its further disclosure.
(iii) is
independently developed by the Receiving Party through Persons
who have not had, either directly or indirectly, access to or
knowledge of such Confidential Information;
(iv)
is disclosed to a
third party with the written approval of the party
originally disclosing such information, provided that such
Confidential Information shall cease to be confidential and
proprietary information covered by this agreement only to the
extent
of the disclosure so consented to;
(v)
subject to the
Receiving Party's compliance with Section 3.4 below
is required to be produced under order of a court of competent
jurisdiction or other similar requirements of a governmental
agency
provided that such Confidential Information to the extent covered
by
a protective order or its equivalent shall otherwise continue to
be
Confidential Information required to be held confidential for
purpose of this agreement; or
(vi)
subject to the
Receiving Party's compliance with Section 3.4 below
is required to be disclosed by applicable Law or a stock exchange
or
association on which such Receiving Party's securities (or those
of
its Related Party) are listed.
Section
3.3. Financial Institutions. Notwithstanding this Article 3,
any
party may provide Confidential Information
to any financial institution in
connection with borrowings from such
financial institution by such party or any
of its Controlled Related Parties, so long
as prior to any such disclosure such
financial institution executes a
confidentiality agreement that provides
protection substantially equivalent to the
protection provided the parties in
this Article 3. "
Section
3.4. Procedures. In the event that any Receiving Party (i) must
disclose Confidential Information in order
to comply with applicable Law or the
requirements of a stock exchange or
association on which such Receiving Party's
securities or those of its Related Parties
are listed or (ii) becomes legally
compelled (by oral questions,
interrogatories, requests for information or
documents, subpoenas, civil investigative
demand or otherwise) to disclose any
Confidential Information, the Receiving
Party shall provide the disclosing party
with prompt written notice so that in the
case of clause (i), the disclosing
party can work with the Receiving Party to
limit the disclosure to the greatest
extent possible consistent with legal
obligations or in the case of clause (ii),
the disclosing party may seek a protective
order or other appropriate remedy or
waive compliance with the provisions of
this agreement. In the case of a clause,
(ii) (A) if the disclosing party is unable
to obtain a protective order or other
appropriate remedy, or if the disclosing
party so directs, the Receiving Party
shall, and shall cause its employees to,
exercise all commercially reasonable
efforts to obtain a protective order or
other appropriate remedy at the
disclosing party's reasonable expense, and
(B) failing the entry of a protective
order or other appropriate remedy or
receipt of a waiver hereunder, the
Receiving Party shall furnish only that
portion of the Confidential Information
which it is advised by opinion of its
counsel is legally required to be
furnished and shall exercise all
commercially reasonable efforts to obtain
reliable assurance that confidential
treatment shall be accorded such
Confidential Information, it being
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EXHIBIT 10.7
understood that such reasonable efforts
shall be at the cost and expense of the
disclosing party whose Confidential
Information has been sought..
Section
3.5. Survival. The obligations under this Article 3 shall
survive,
as to any party, until two (2) years
following the date of termination of this
agreement, and, as to any Controlled
Related Party of a party, until two (2)
years following the earlier to occur of (A)
the date that such Person is no
longer a Controlled Related Party of a
party, or (B) the date of the termination
of this agreement; provided that such
obligations shall continue indefinitely
with respect to any trade secret or similar
information which is proprietary to
a party or its Controlled Related Parties
and provides such party or its
Controlled Related Parties with an
advantage over its competitors.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE
Section
4.1. Licensor's Ownership. Licensee acknowledges Licensor's
exclusive right.. title and interest in and
to the Licensed Marks and
acknowledges that nothing herein shall be
construed to accord to Licensee any
rights in the Service Area in the Licensed
Marks except as expressly provided,
herein. Licensee acknowledges that its use
in the Service Area of the Licensed
Marks shall not create in Licensee any
right, title or interest in the Service
Area in the Licensed Marks and that all use
in the Service Area of the Licensed
Marks and the goodwill symbolized by and
connected with such use of the Licensed
Marks will inure solely to the benefit of
the Licensor.
Section
4.2. No Challenge by Licensee. Licensee covenants that (i)
Licensee will not at any time challenge
Licensor's rights, title or interest in
the Licensed Marks (other than to assert
the specific rights granted to Licensee
under this agreement), (ii) Licensee will
not do or cause to be done or omit to
do anything, the doing, causing or omitting
of which would contest or in any way
impair or tend to impair the rights of
Licensor in the Licensed Marks, and (iii)
Licensee will not represent to any third
party that Licensee has any ownership
or rights in the Service Area with respect
to the Licensed Marks other than the
specific rights conferred by this
agreement..
ARTICLE 5
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF LICENSOR
Section 5.1. Title to the Licensed Marks.
Licensor represents and warrants that:
"
(a)
Licensor has
good title to the Licensed Marks and has the right to
grant the licenses provided for hereunder in accordance with
the
terms and conditions hereof, free of any liabilities, charges,
liens, pledges, mortgages, restrictions, adverse claims,
security
interests, rights of others, and encumbrances of any kind
(collectively, "Encumbrances"), other than Encumbrances which
will
not restrict or interfere in any material respect with the
exercise
by Licensee of the rights granted to Licensee hereunder.
(b)
There is no
claim, action, proceeding or other litigation pending
or, to the knowledge of Licensor, threatened with respect to
Licensor's ownership of the Licensed Marks or which if
adversely
determined, would restrict or otherwise interfere in any
material
respect with the exercise by Licensee of the rights purported to
be
granted to Licensee hereunder.
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EXHIBIT 10.7
Except as
expressly provided above in this Section 5.1, Licensor makes no
representation or warranty of any kind or
nature whether express or implied with
respect to the Licensed Marks (including
freedom from third party infringement
of the Licensed Marks).
The
representations and warranties provided for in this Section 5.1
shall
survive the execution and delivery of this
agreement.
Section
5.2. Other Licenses. In the event Licensor grants to any third
party any licenses or rights with respect
to the Licensed Marks, Licensor shall
not in connection with the grant of any
such license or rights, take any
actions, or suffer any omission that would
adversely affect the existence or
validity of the Licensed Marks or conflict
with the rights granted to Licensee
hereunder.
Section
5.3. Abandonment. Licensor covenants and agrees that, during
the
tem1 of this agreement, it will not abandon
the Licensed Marks.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES
Section
6.1. Representations and Warranties. Each party hereby
represents
and warrants to the other party as follows:
"
(a)
Due
Incorporation or Formation: Authorization of Agreement. Such
party is a corporation duly organized, a limited liability
company
duly organized or a partnership duly formed, validly existing
and,
if applicable, in good standing under the laws of the
jurisdiction
of its incorporation or formation and has the corporate company
or
partnership power and authority to own its property and carry on
its
business as owned and carried on at the date hereof and as
contemplated
hereby. Such party is duly licensed or qualified to do
business and. if applicable is in good standing in each of the
jurisdictions in which the failure to be so licensed or
qualified
would have a material adverse effect on its financial condition
or
its ability to perform its obligations hereunder. Such party has
the
corporate company or partnership power and authority to execute
and
deliver this agreement and to perform its obligations hereunder
and
the execution, delivery and performance of this agreement have
been
duly authorized by all necessary corporate, company or
partnership
action. Assuming the due execution and delivery by the other
party
hereto, this agreement constitutes the legal, valid and binding
obligation of such party enforceable against such party in
accordance with its terms, subject as to enforceability to
limits
imposed by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and the availability of equitable
remedies.
(b)
No Conflict with
Restrictions: No Default. Neither t
