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EXHIBIT 10.36
ADMINISTRATIVE CARRIER AGREEMENT
THIS ADMINISTRATIVE CARRIER AGREEMENT (the "Agreement") is entered into
by and between HighwayMaster Corporation ("HighwayMaster"), a Delaware
corporation, with its principal place of business located at 1155 Kas Drive,
Richardson, Texas, 75081, and Southwestern Bell Mobile Systems, Inc., a Virginia
and Delaware corporation ("SBMS"), with its principal place of business located
at 17330 Preston Road, Suite 100A, Dallas, Texas 75252, effective as of March
30, 1999.
WHEREAS, HighwayMaster has previously engaged, and through the Cutover
Date will engage, GTE Wireless, Inc. ("GTEW") to provide administrative and
billing services to HighwayMaster in connection with HighwayMaster's provision
of enhanced services to its end users; and
WHEREAS, HighwayMaster and GTEW have agreed that HighwayMaster will
engage a new provider of administrative and billing services; and
WHEREAS, HighwayMaster desires to engage SBMS and SBMS desires to
provide to HighwayMaster certain administrative and billing services in
connection with HighwayMaster's provision of enhanced services to
HighwayMaster's end users;
NOW, THEREFORE, in consideration of the premises, the terms and
conditions set forth herein, the mutual benefits to be gained by the performance
thereof and other good, valuable, mutual and binding consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
I. DEFINITION OF TERMS
1. The definition of terms set forth in this Section 1 shall apply in this
Agreement (in addition to terms expressly defined elsewhere herein)
including any and all exhibits, addenda, and amendments made to or
incorporated herein now or in the future:
1.1. "Affiliate" means any person or entity that directly or
indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with another person
or entity. Control shall be defined as (i) fifty percent (50%)
or more ownership or beneficial interest of income and capital
of an entity; or (ii) ownership of at least fifty percent
(50%) of the voting power of voting equity; or (iii) sole or
shared management by a general partner of the entity; or (iv)
the ability to otherwise direct management policies of the
entity by contract or otherwise.
1.2. "BID" means the billing identification code that allows an
NPA/NXX in a Market to be defined as a stand alone billing
center.
1.3. "Carrier" means a company authorized by appropriate regulatory
agencies to provide
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domestic cellular radio service.
1.4. "Cellular Number or MIN" means the phone number or mobile
identification number assigned to a Unit.
1.5. "Covered Markets" means those Markets operated by Carriers
with which SBMS has both an Intercarrier Roamer Service
Agreement ("IRSA") and Addendum to IRSA for HighwayMaster
Service, and with which HighwayMaster has a Cellular Service
Agreement ("CSA").
1.6. "CTS" means cellular telephone service available in any
Covered Market.
1.7. "CTS Usage" means the use of cellular airtime services for any
purpose.
1.8. "Cutover Date" means the date on which GTEW ceases to provide
Services for HighwayMaster and SBMS begins to provide the
Services to HighwayMaster.
1.9. "Data CTS" means the use of cellular airtime services for the
purpose of transmitting data communications via cellular
networks.
1.10. "End-Users" means the customers of HighwayMaster who purchase
the enhanced services for use in connection with the Units.
1.11. "FCC" means the Federal Communications Commission.
1.12. "HighwayMaster Information" means the technical and business
information which is proprietary and confidential to
HighwayMaster, and such other information marked
"Confidential" and disclosed to SBMS by HighwayMaster pursuant
to this Agreement. The HighwayMaster Information shall not
include information which: (a) is now or in the future becomes
generally known to the public through no fault of SBMS; (b)
prior to disclosure hereunder, is properly within the
legitimate possession of SBMS, without any restriction on
disclosure; (c) subsequent to disclosure hereunder, the
information is lawfully received from a third party having
rights to disseminate the information and without any
restriction on disclosure; (d) is obligated to be produced
under order of a court of competent jurisdiction or by means
of other valid legal process; provided, however, that SBMS
shall notify HighwayMaster of such order or process so that
HighwayMaster may seek a protective order; and/or (e) was
independently developed by SBMS without reference to or
reliance on the HighwayMaster Information.
1.13. "IRSA" means an Intercarrier Roamer Service Agreement.
1.14. "IRSA Addendum" means an Addendum to an Intercarrier Roamer
Service Agreement between SBMS and a Carrier to facilitate the
provision of domestic
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celluar roaming service to HighwayMaster's end users in that
Carrier's market(s).
1.15. "Market" means a cellular service area operated by a Carrier,
which consists of one or more licensed areas defined by the
Federal Communications Commission as either metropolitan
statistical areas ("MSAs") or rural service areas ("RSAs").
1.16. "Material Default" means any material breach of any
obligation, representation, warranty or covenant by a party to
this Agreement which has not been cured within thirty (30)
days after notice of such breach is given to the breaching
party by the non-breaching party.
1.17. "Non-SBMS Carrier" means a Carrier with which SBMS has signed
an IRSA that is not an SBMS Affiliate.
1.18. "Non-SBMS Market" means any domestic cellular market, whether
an MSA or RSA or a combination thereof, for which a Non-SBMS
Carrier holds the FCC license or in which a Non-SBMS Affiliate
manages or holds a controlling interest.
1.19. "NPA/NXX" means a ten thousand block of telephone numbers
represented by the NPA (numbering plan area or area code) and
NXX (prefix) assigned to that block of numbers.
1.20. "NSC" means the Network Services Center owned and operated by
HighwayMaster.
1.21. "Roaming Rate" means the agreed upon rate established by
HighwayMaster and each Carrier in a Market operated by such
Carrier for CTS Usage in that Carrier's Market.
1.22. "SBMS Carrier" means a Carrier that is SBMS or an SBMS
Affiliate.
1.23. "SBMS Information" means the technical and business
information which is proprietary and confidential to SBMS, and
such other information marked "Confidential" and disclosed to
HighwayMaster by SBMS pursuant to this Agreement. The SBMS
Information shall not include information which: (a) is now or
in the future becomes generally known to the public through no
fault of HighwayMaster; (b) prior to disclosure hereunder, is
properly within the legitimate possession of HighwayMaster,
without any restriction on disclosure; (c) subsequent to
disclosure hereunder, the information is lawfully received
from a third party having rights to disseminate the
information and without any restriction on disclosure; (d) is
obligated to be produced under order of a court of competent
jurisdiction or by means of other valid legal process;
provided, however, that HighwayMaster shall notify SBMS of
such order or process so SBMS may seek a protective order;
and/or (e) was independently developed by the HighwayMaster
without reference to or reliance on SBMS Information.
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1.24. "SBMS Market" means any domestic cellular market, whether an
MSA or an RSA or a combination thereof, for which SBMS or an
SBMS Affiliate holds the FCC license or in which SBMS or an
SBMS Affiliate manages or holds a controlling interest.
Attached hereto as Exhibit "A" is a list of all current SBMS
Markets.
1.25. "Services" means the administrative and settlement services to
be provided by SBMS to HighwayMaster for HighwayMaster's use
in connection with its provision of enhanced services to its
End-Users.
1.26. "SID" means the five (5) digit system identification code
assigned to a Market.
1.27. "Unit" means the HighwayMaster mobile communications unit.
1.28. "Voice CTS" means the use of cellular airtime services for the
purpose of transmitting voice communications via cellular
networks.
II. SBMS' OBLIGATIONS
2. SBMS' Obligations. In addition to the other covenants, terms and
conditions set forth in this Agreement, effective as of the Cutover
Date SBMS agrees to provide the following Services for HighwayMaster's
use in providing enhanced services to its End-Users in connection with
their use of the Units in any Covered Markets.
2.1. BID. SBMS will maintain the HighwayMaster BID for NPA/NXXs
solely for the use of HighwayMaster as permitted by any laws,
rules or regulations. The BIDs will permit identification of
Units in each Market as permitted by any laws, rules or
regulations.
2.2. Operational Services.
2.2.1. Visibility. SBMS will provide HighwayMaster with
access to Visibility services for the HighwayMaster
BID, subject to its ability to obtain GTE-TSI's
consent to do so.
2.2.2. SBMS will provide, or cause to be provided, to
HighwayMaster CIBER in collect tapes reflecting CTS
Usage associated with the HighwayMaster BID, subject
to its ability to obtain GTE-TSI's consent to do so.
Whether SBMS provides the tapes or causes them to be
provided directly to HighwayMaster by GTE-TSI shall
be decided in SBMS's sole discretion, as it deems
appropriate or feasible from time to time.
2.2.3. Within thirty (30) days of the end of each settlement
cycle, SBMS will provide HighwayMaster with a
financial summary consisting of charges by
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SBMS Carriers and Non-SBMS Carriers for CTS Usage
associated with the HighwayMaster BID in each
Carrier's respective Markets during that settlement
cycle, subject to its ability to obtain GTE-TSI's
consent to do so. SBMS will also provide CHARM
Reports to back up the summary, also subject to
GTE-TSI's consent.
2.2.3.1. As an alternative to the procedure set forth
in the preceding subsection, SBMS in its
sole discretion from time to time, may, with
GTE-TSI's consent, cause GTE-TSI to provide
HighwayMaster with access to the summary
financial information described above
through GTE-TSI's ACCESSibility service.
2.2.4. Following the close of each settlement cycle, SBMS
shall provide HighwayMaster with an invoice for the
Carrier Charges based upon the net settlement amounts
funded by SBMS with respect to the HighwayMaster BID.
2.3. Payment of Charges.
2.3.1. Net Settlement. SBMS shall act as HighwayMaster?s
payment agent for purposes of timely paying any and
all net settlement amounts charged by Carriers with
respect to NPA/NXXs and/or BID(s) assigned to
HighwayMaster or its End-Users in the Carrier?s
Market ("Carrier Charges"). The parties acknowledge
and understand that SBMS is merely acting as the
payment agent of HighwayMaster in connection with the
CIBERNET net settlement process and that
HighwayMaster is solely liable for any and all
amounts due Carriers for CTS Usage with respect to
the HighwayMaster BID.
2.3.2. Reimbursement. HighwayMaster shall reimburse SBMS for
any and all amounts paid by SBMS to Carriers for
Carrier Charges, regardless of whether such charges
were improperly invoiced or not. SBMS shall not have
any responsibility to investigate or determine
whether the Carrier Charges are correct, and
HighwayMaster has no defense to claims by SBMS for
amounts paid by it for Carrier Charges based upon the
impropriety of the Carrier Charges.
2.3.3. Improper Billing by Carriers. From time to time,
various carriers incorrectly rate or charge for CTS
Usage for cellular service provided to End-Users in
their Market. The parties anticipate that most
Carriers will sign the IRSA Addendum in the form of
that attached hereto as Exhibit 1. In those cases,
HighwayMaster will bear all responsibility for
seeking refunds for overcharges from the Carriers and
for making payments to Carriers for undercharges, and
will do so outside of the CIBERNET settlement
process. With respect to any Carrier(s) that are
unwilling to sign the Exhibit 1 form of IRSA Addendum
solely because of the paragraph 3 adjustment language
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therein, SBMS agrees to modify that language, and
SBMS and HighwayMaster agree to cooperate in
implementing a mutually acceptable mechanism for SBMS
to facilitate refunds from those Carriers for
improperly rated or charged CTS Usage.
2.3.4. HighwayMaster agrees to indemnify and hold harmless
SBMS from any and all claims, losses, damages, causes
of action, costs (including reasonable attorney's
fees) or reasonable expenses incurred by SBMS as a
result of any claim or action brought by a third
party and arising from the payment of amounts to
Carriers under this Agreement.
2.3.5. Alternative Billing Arrangements. Nothing herein
restricts HighwayMaster from entering into separate
agreements with Non-SBMS Carriers to establish
alternate standards, processes and arrangements by
which HighwayMaster would settle and be billed for
the use of such Non-SBMS Carrier's CTS ("Alternative
Billing Arrangements"), provided, that HighwayMaster
shall not be relieved of any of its obligations
hereunder. SBMS shall have no obligation to provide
any Services or assistance to HighwayMaster in
connection with the Alternative Billing Arrangement.
2.4. Provision of CTS.
2.4.1. SBMS Markets. HighwayMaster hereby authorizes SBMS
and SBMS agrees that it will negotiate and execute
IRSA Addenda and cause HighwayMaster to be provided
with CTS in the SBMS Markets under the same terms
(other than rates) that it negotiates such CTS access
in Non-SBMS Markets. To the extent that an SBMS
Market loses the required FCC license or other
necessary approvals, such SBMS Market shall have no
obligation to provide CTS to HighwayMaster.
2.4.2. Non-SBMS Markets. HighwayMaster hereby authorizes
SBMS and SBMS agrees that it will use commercially
reasonable efforts to negotiate and execute IRSA
Addenda in substantially the form of that attached
hereto as Exhibit 1 to cause HighwayMaster to be
provided with CTS in the Non-SBMS Markets. SBMS shall
ensure that its IRSA Addenda with the Non-SBMS
Carriers permit for rating of End-User CTS at the
rates set forth in HighwayMaster's CSAs with the
Non-SBMS Carriers. SBMS will have no liability to
HighwayMaster or any third party for its failure to
obtain IRSA Addenda from any particular Carriers or
from any particular number of Carriers either before
or after the Cutover Date. The terms and conditions
of all IRSA Addenda are confidential and proprietary
to SBMS and are subject to the provisions of this
Agreement relating to SBMS Information.
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III. SBMS' REPRESENTATIONS
3. SBMS' Representations.
3.1. Other Material Agreements. The execution, delivery and
performance of this Agreement does not conflict with or result
in a material breach of any provision of any material
agreement to which SBMS is a party.
3.2. Valid Execution. This Agreement has been duly executed and
delivered by an authorized representative of SBMS and
constitutes a valid and legally binding obligation of SBMS,
enforceable against it in accordance with its terms.
IV. HIGHWAYMASTER'S REPRESENTATIONS
4. HighwayMaster's Representations.
4.1. Other Material Agreements. The execution, delivery and
performance of this Agreement does not conflict with or result
in a material breach of any provision of any material
agreement to which HighwayMaster is a party.
4.2. Valid Execution. This Agreement has been duly executed and
delivered by an authorized representative of HighwayMaster and
constitutes a valid and legally binding obligation of
HighwayMaster, enforceable against it in accordance with its
terms.
V. HIGHWAYMASTER'S OBLIGATIONS
5. HighwayMaster's Obligations.
5.1. NPA/NXXs. HighwayMaster will provide to SBMS the NPA/NXX
combinations for its existing End-Users and all BIDs for those
NPA/NXXs. HighwayMaster's NPA/NXX combinations are currently
associated with a BID assigned to GTEW. HighwayMaster will
cause GTEW to cooperate with SBMS in assigning to SBMS the
NPA/NXXs and the BID with which they are associated.
HighwayMaster will ensure that the NPA/NXXs shall be in a
designated numbering system compatible with GTE
Telecommunications Systems Incorporated ("GTE-TSI") for
purposes of validation. The NPA/NXXs shall be stored and
maintained in a validation database at GTE-TSI (the
"HighwayMaster Database"). HighwayMaster and SBMS shall have
access to the HighwayMaster Database at all times during the
term of this Agreement and for a reasonable time period after
expiration or termination of this Agreement to allow each
party to perform or complete any outstanding billing or other
functions under this Agreement. [Text has been omitted
pursuant to a request for confidential treatment. The omitted
material has been filed separately with the SEC.]
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5.2. Negotiation of CTS Rates with Carriers. HighwayMaster is
solely responsible for the negotiation of any rates for CTS,
whether Voice CTS or Data CTS, and the execution of any CSAs
in Covered Markets. HighwayMaster will not sign any CSAs that
refer to SBMS or an administrative carrier without SBMS' prior
consent, nor will it sign any CSAs that conflict with the
terms of this Agreement. In order to permit SBMS to provide
the Services hereunder, HighwayMaster is required to notify
SBMS of the effective dates of, and supply SBMS with fully
executed copies of, any CSAs with Non-SBMS Markets.
HighwayMaster is also required to promptly notify SBMS of the
termination or expiration of any CSA. The terms and conditions
contained in these CSAs are confidential and proprietary to
HighwayMaster and are subject to the provisions of this
Agreement relating to HighwayMaster Information.
5.3. CTS Rates and Roaming Rates Acknowledgments. HighwayMaster
will be solely responsible for the negotiation and
establishment of CTS rates or other pricing with Non-SBMS
Carriers through its CSAs with the Non-SBMS Carriers.
HighwayMaster acknowledges that SBMS is not authorized and
cannot establish Roaming Rates for any Non-SBMS Market.
HighwayMaster acknowledges and agrees that it shall pay SBMS
an amount, including, but not limited to, the full amount of
all charges assessed by each Carrier with respect to
HighwayMaster NPA/NXXs and/or BIDs and paid by SBMS through
net settlement or otherwise. Nothing herein shall be construed
as requiring SBMS to offset any difference between the actual
rates charged by a Carrier in a particular Market and the
Roaming Rates or other rates requested or negotiated by
HighwayMaster with that Carrier. HighwayMaster further
acknowledges that IRSA Addenda between SBMS and the Non-SBMS
Carriers are subject to termination. To the extent any of the
IRSA Addenda are terminated, SBMS is not obligated to make
available Services in the Markets governed by such terminated
IRSA Addendum and SBMS shall have no obligation to
HighwayMaster for any damages, losses, or other effects of
such termination. SBMS will use commercially reasonable
efforts to maintain the IRSA Addenda with Non-SBMS Carriers.
5.4. Activations/Identification Changes. HighwayMaster shall be
responsible for all activations and identification changes
with respect to End-Users.
5.5. Technical Support. HighwayMaster shall be responsible for
responding to all End-User trouble tickets and will resolve
technical issues with Carriers and GTE-TSI.
5.6. Carrier Contacts. HighwayMaster will remain the point of
contact for Carriers with respect to rates, contract issues or
program changes. HighwayMaster shall handle all switch
configuration and network issues directly with each Carrier.
5.7. Regulatory and Legal Approvals. To the extent HighwayMaster is
required to obtain any federal, state, local or regulatory
approvals, licenses or certifications to provide enhanced
services to its End-Users, HighwayMaster is solely responsible
for
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obtaining such approvals, licenses or certifications.
HighwayMaster agrees to indemnify and hold harmless SBMS from
any claims, losses, damages, causes of action, costs
(including reasonable attorney's fees) or reasonable expenses
incurred by SBMS as a result of any claim or action brought by
a third party and arising from HighwayMaster's failure to
obtain any required licenses, approvals or other
certifications.
5.8. Technical Data Updates. SBMS and HighwayMaster will issue a
joint technical update to the Carriers explaining the
transition from HighwayMaster's prior administrative carrier
to SBMS. HighwayMaster shall compose and provide additional
technical data updates to all carriers at least two (2) times
per year, provided that HighwayMaster shall not release any
updates without prior written approval from SBMS, which
approval shall not be unreasonably withheld.
5.9. Technical Data Sheets. HighwayMaster will request and maintain
technical data sheets from Carriers for trouble resolution and
record maintenance.
5.10. CTS Restrictions. HighwayMaster, and not SBMS, shall be
responsible for informing Carriers of any required call
restrictions with respect to the HighwayMaster NPA/NXXs or
Units, [Text has been omitted pursuant to a request for
confidential treatment. The omitted material has been filed
separately with the SEC.] HighwayMaster acknowledges and
agrees that HighwayMaster will be solely responsible for any
amounts owed for CTS Usage or any other costs incurred in
Non-SBMS Markets where the Carrier does not provide or install
the required restrictions. HighwayMaster shall ensure that its
CSAs with Carriers impose obligations on the Carriers to
implement the dialing restrictions. HighwayMaster agrees to
maintain its current security and fraud prevention systems and
validation procedures in place and active, and to the extent
HighwayMaster ceases any such security protections,
HighwayMaster will be liable for fraudulent End-User CTS.
End-Users shall be permitted to dial 911 emergency services,
but HighwayMaster acknowledges that neither SBMS nor the SBMS
Markets provide or control the provision of 911 emergency
services in any Market.
VI. INTELLECTUAL PROPERTY
6. Intellectual Property.
6.1. No Assignment or License of Intellectual Property. Nothing
contained herein shall be construed to grant SBMS any right,
title or license in or to, whether express or implied, the
patents, copyrights, trademarks, trade secrets, mask works or
other proprietary rights of HighwayMaster or any improvements
and/or modifications thereto. Nothing contained herein shall
be construed to grant HighwayMaster any right, title or
license in or to, whether express or implied, the patents,
copyrights, trademarks, trade secrets, mask works or other
proprietary rights of SBMS or any improvements and/or
modifications thereto.
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6.2. Intellectual Property Indemnity. HighwayMaster agrees to
indemnify and hold SBMS harmless from and against any loss,
liability, damage or expense (including attorneys' fees and
court costs) that may result by reason of any infringement or
claim of infringement, of any entity's intellectual property
rights or other proprietary interest, arising out of any
services provided by HighwayMaster to End Users or Carriers.
This indemnity shall include, but is not limited to, any
claims by GTEW or its affiliates with respect to any
intellectual property employed by HighwayMaster. SBMS shall
promptly notify HighwayMaster of any claim for which it is
responsible hereunder.
VII. CONFIDENTIALITY
7. Confidentiality.
7.1. Ownership, Use and Confidentiality of HighwayMaster
Information. HighwayMaster Information shall remain the
property of HighwayMaster and its End-Users. SBMS may only use
the HighwayMaster Information to the extent set forth herein
or as required to perform the Services hereunder, unless SBMS
obtains the prior written consent of HighwayMaster to use the
HighwayMaster Information for another purpose. SBMS shall not
disclose the HighwayMaster Information to any third party
without the prior written consent of HighwayMaster. If SBMS
receives or is served with any order, subpoena, demand or
other request from a governmental agency, court, or other
legal forum to produce the HighwayMaster Information, in whole
or in part, SBMS will provide HighwayMaster with prompt notice
of such request so that HighwayMaster at its expense, may seek
a protective order or such other remedy to prevent production
of the HighwayMaster Information. If SBMS ultimately complies
with a proper request, SBMS will not be in violation of this
Section. Upon the termination or expiration of this Agreement
or, with respect to any HighwayMaster Information, on such
earlier date that SBMS in its opinion, shall no longer require
the HighwayMaster Information to provides the Services
hereunder, SBMS shall, at HighwayMaster's request, either
erase the HighwayMaster Information from any files maintained
by SBMS or return the HighwayMaster Information to
HighwayMaster. SBMS agrees to protect and safeguard the
confidentiality of the HighwayMaster Information to the same
degree and extent as SBMS protects and safeguards its own
confidential and proprietary information.
7.2. Ownership, Use and Confidentiality of SBMS Information. SBMS
Information shall remain the property of SBMS. HighwayMaster
may only use the SBMS Information to the extent set forth
herein or as required to perform its obligations hereunder,
unless HighwayMaster obtains the prior written consent of SBMS
to use the SBMS Information for another purpose. HighwayMaster
shall not disclose the SBMS Information to any third party
without the prior written consent of SBMS. If HighwayMaster
receives or is served with any order, subpoena, demand or
other
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request from a governmental agency, court, or other legal
forum to produce the SBMS Information, in whole or in part,
HighwayMaster will provide SBMS with prompt notice of such
request so that SBMS at its expense, may seek a protective
order or such other remedy to prevent production of the SBMS
Information. If HighwayMaster ultimately complies with a
proper request, HighwayMaster will not be in violation of this
Section. Upon the termination or expiration of this Agreement
or, with respect to any SBMS Information, on such earlier date
that HighwayMaster in its opinion, shall no longer require the
SBMS Information to perform its obligations hereunder,
HighwayMaster shall, at SBMS' request, either erase the SBMS
Information from any files maintained by HighwayMaster or
return the SBMS Information to SBMS. HighwayMaster agrees to
protect and safeguard the confidentiality of the SBMS
Information to the same degree and extent as HighwayMaster
protects and safeguards its own confidential and proprietary
information.
VIII. FEES AND INTEREST
8. Fees and Interest.
8.1. Monthly Administrative Carrier Fee. In exchange for the
Services provided hereunder to HighwayMaster by SBMS,
HighwayMaster shall pay to SBMS a monthly recurring
Administrative Carrier Fee within thirty (30) days of receipt
of an invoice for the same. Prior to the Cutover Date, the
Administrative Carrier Fee will be [Text has been omitted
pursuant to a request for confidential treatment. The omitted
material has been filed separately with the SEC.] per month.
After the Cutover Date the Administrative Carrier Fee will be
[Text has been omitted pursuant to a request for confidential
treatment. The omitted material has been filed separately with
the SEC.] per month.
8.2. Carrier Charge Reimbursement. HighwayMaster shall pay SBMS for
any and all Carrier Charges (including all SBMS and Non-SBMS
CTS and Roaming Charges) amounts paid by SBMS as set forth
elsewhere in this Agreement.
8.3. Clearinghouse Fees. [Text has been omitted pursuant to a
request for confidential treatment. The omitted material has
been filed separately with the SEC.]
8.4. Late Payment. Any Administrative Carrier Fees, Carrier Charge
reimbursements or other charges or reimbursements not paid by
the due date shall accrue interest on the unpaid amount until
paid at the rate of 1 1/2 % per month or the maximum amount
allowed by law, whichever is less.
IX. TERM AND TERMINATION
9. Term and Termination.
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9.1. Initial Term. The initial term of this Agreement shall be for
a period of three years commencing on the date of execution of
this Agreement by both parties and ending on the third
anniversary of such date (the "Initial Term").
9.2. Renewal Term. Upon expiration of the Initial Term, this
Agreement shall automatically renew upon the same terms and
conditions for five (5) consecutive one (1) year renewal terms
(a "Renewal Term"), unless either party gives the other
written notice of its intent not to renew at least six (6)
months prior to the expiration of the existing Renewal Term.
9.3. Termination for Cause. In the event of a Material Default by
either party under this Agreement, the non-defaulting party
may terminate this Agreement by giving notice of such
termination to the other party to this Agreement, which notice
of termination shall specify a date no earlier than sixty (60)
days after the date such notice is given for such termination.
9.4. Termination for Nonpayment. In the event that HighwayMaster
fails to pay SBMS any amounts owed under this Agreement within
thirty (30) days of actual receipt of an Invoice and
HighwayMaster fails to fully cure such payment default within
ninety (90) days after notice by SBMS of such payment default,
then SBMS may terminate this Agreement by giving notice of
such termination to HighwayMaster, which notice of termination
shall specify a date no earlier than the date such notice is
given for such termination.
9.5. Termination for Insolvency. If HighwayMaster makes an
assignment for the benefit of creditors or files a voluntary
petition under Title 11 of the United States Code or under any
similar state insolvency laws or if HighwayMaster shall have
an involuntary petition for bankruptcy filed against it under
Title 11 of the United States Code and such involuntary
petition is not dismissed within thirty (30) days; or a
trustee or receiver is appointed to administer HighwayMaster's
business or assets, SBMS shall have the right to terminate
this Agreement effective upon notification of such termination
to HighwayMaster.
9.6. Termination for Impossibility. SBMS may terminate this
Agreement immediately upon written notice to HighwayMaster at
any time more than forty-five (45) days after the scheduled
Cutover Date if at such time HighwayMaster has not yet
effected the transfer of the HighwayMaster BID and associated
NPA/NXXs to SBMS.
9.7. Transition Period. Upon expiration of the Initial Term or any
Renewal Term or the termination of this Agreement under
Sections 9.2 or 9.3 (except when SBMS terminates HighwayMaster
as a result of a Material Default), SBMS shall continue to
provide the Services to HighwayMaster in accordance with the
terms and conditions of this Agreement for a period not to
exceed nine (9) months to permit
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HighwayMaster to transition from SBMS to another party (the
"Transition Period"). At any time during the Transition
Period, HighwayMaster may terminate the provision of Service
by SBMS upon thirty (30) days written notice. Upon the
expiration of the Transition Period, SBMS shall have no
obligation to provide the Services to HighwayMaster under any
circumstances.
X. TRANSITION OF ADMINISTRATIVE CARRIERS
10. The Parties agree to the following provisions in connection with
HighwayMaster's transition of administrative carriers from GTEW to
SBMS:
10.1. The Cutover Date will be September 30, 1999, unless an earlier
date is agreed to in writing by the parties hereto.
10.2. HighwayMaster will cause GTEW to cooperate with SBMS in
assigning to SBMS the NPA/NXXs and the BID with which they are
associated effective as of the Cutover Date. HighwayMaster
will cause any existing GTEW roaming addenda that address
HighwayMaster service to terminate on or before the Cutover
Date. HighwayMaster will cause any existing Cellular Service
Agreements that reference GTEW as its administrative carrier
or that SBMS has not approved to terminate on or before the
Cutover Date.
10.3. HighwayMaster will use commercially reasonable efforts to sign
Cellular Service Agreements with as many of SBMS' domestic
cellular roaming partners as possible to be effective as of
the Cutover Date. HighwayMaster will continue its efforts to
sign up Carriers after the Cutover Date.
10.4. SBMS will use commercially reasonable efforts to sign IRSA
Addenda substantially in the form of that attached as Exhibit
1 hereto with as many of its domestic cellular roaming
partners as possible to be effective as of the Cutover Date.
SBMS will continue its efforts to sign up Carriers after the
Cutover Date in accordance with Section 2.4 above.
10.5. SBMS and HighwayMaster will coordinate their respective
efforts to obtain IRSA Addenda and Cellular Service Agreements
from the same Carriers.
XI. MISCELLANEOUS
11. Miscellaneous.
11.1. Force Majeure. Each party hereto shall be excused from
performance hereunder for any period and to the extent that it
is prevented from performing any action pursuant hereto, in
whole or in part, as a result of delays beyond its control
caused by the other party or by an act of God or the public
enemy, fire, floods, epidemics, quarantine
ADMINISTRATIVE CARRIER AGREEMENT
PAGE - 13
14
restrictions, civil disturbance, court order, labor dispute,
third party nonperformance (except to the extent such third
party nonperformance is wrongfully caused by a party to this
Agreement), or other cause beyond its control, including
without limitation failures or fluctuations in electrical
power, heat, light or air conditioning.
11.2. Single Point of Contact. SBMS and HighwayMaster shall each
identify in writing, subject to change at any time, a single
point of contact to coordinate activations, identify existing
problems with the provision of the Services by SBMS. Each
party will provide a contact person with adequate technical
knowledge and understanding of the mutual obligations
hereunder and such contact person will be available on a
regular basis Monday through Friday from 8:00 a.m. to 5:00
p.m. Central Standard Time.
11.3. Severability. Any provision of this Agreement which is
prohibited, unenforceable or is declared or found to be
illegal, unenforceable or void, in any jurisdiction shall, as
to such jurisdiction, be ineffective only to the extent of
such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions of
this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.
11.4. Nondisclosure/Media Releases. All media releases, public
announcements and public disclosures by any party hereto
relating to this Agreement or its subject matter, including
without limitation promotional or marketing material, but not
including any announcement intended solely for internal
distribution or any disclosure required by legal, accounting
or regulatory requirements beyond the reasonable control of
such party, shall be coordinated with and approved by the
other party hereto prior to the release thereof, which
approval shall not be unreasonably withheld or delayed. The
terms of this Agreement are confidential except that either
party may disclose the terms of this Agreement to any of its
employees, consultants or professionals on a "need to know
basis" to permit performance hereunder. Neither party shall
announce or disclose to any third party, the terms and
conditions contained herein or any discussions relating
thereto, without the prior written consent of the other party,
except as required by law, in which case the party required to
make disclosure shall give the other party prompt notice of
any such requirement so that the other party can take any
actions it deems appropriate to protect the information from
disclosure. Notwithstanding the above, HighwayMaster shall be
permitted to disclose this Agreement to the Securities and
Exchange Commission ("SEC") and file it therewith, as
required. HighwayMaster shall provide the SEC with a clean and
redacted copy of the Agreement to indicate to the SEC which
Sections should be redacted and unavailable for public review.
A copy of the Agreement with the proposed redactions will be
provided to SBMS twenty (20) business days prior to filing the
Agreement with the SEC, and SBMS shall have such twenty (20)
business days to request additional or different redactions.
In the event no such comments are provided to HighwayMaster by
SBMS in such time period, HighwayMaster shall be authorized to
ADMINISTRATIVE CARRIER AGREEMENT
PAGE - 14
15
file this Agreement with the SEC in the form given to SBMS for
review. To the extent the SEC or HighwayMaster determines that
any requested redactions are not allowed by the SEC,
HighwayMaster must notify SBMS of the specific changes
required by the SEC prior to filing this Agreement with the
SEC.
11.5. Notices. Any notice required by this Agreement must be given
by depositing a copy of such notice (i) in the United States
mail, postage prepaid, certified return receipt requested or
(ii) in overnight delivery or (ii) via facsimile. Any such
notice will be deemed to be received upon the earlier of
verification of delivery or on the third day after depositing
a copy of such notice in the mail or overnight delivery,
except that notices received by facsimile shall only be deemed
effective upon actual receipt by the individual with the title
set forth below as confirmed solely by such individual. Any
such notice will be given at the following addresses or to
such later addresses of which the sending party has received
actual or constructive notice:
If to HighwayMaster:
HighwayMaster Corporation
1155 Kas Drive
Richardson, Texas 75081
Attention: General Counsel
FAX No.: (972) 301-2263
If to SBMS:
Southwestern Bell Mobile Systems, Inc.
17330 Preston Road, Suite 100A
Dallas, Texas 75252
Attention: Director, Intercarrier Services
FAX No.: 972-733-6155
With a copy to:
Southwestern Bell Mobile Systems, Inc.
17330 Preston Road, Suite 100A
Dallas, Texas 75252
Attention: Vice President, Secretary, and General Counsel
FAX No.: 972-733-2021
11.6. Legal Representation. HighwayMaster acknowledges that SBMS has
offered no legal advice or counsel to HighwayMaster nor made
any representations to HighwayMaster regarding HighwayMaster's
exemption from the jurisdiction of federal, state, or local
governmental agencies with potential jurisdiction over the
parties herein and the Services to be rendered hereunder and
SBMS has not offered HighwayMaster any legal advice or counsel
regarding the subject matter of this Agreement. SBMS
acknowledges that HighwayMaster has offered no legal advice or
counsel to SBMS nor made any representations to SBMS regarding
SBMS' exemption from the
ADMINISTRATIVE CARRIER AGREEMENT
PAGE - 15
16
jurisdiction of federal, state, or local governmental agencies
with potential jurisdiction over the parties herein and the
Services and obligations to be rendered hereunder and
HighwayMaster has not offered SBMS any legal advice or counsel
regarding the subject matter of this Agreement.
11.7. Interpretation. Headings used in this Agreement are for
convenience only and will not be deemed to be operative text.
Terms of gender will be deemed interchangeable, as will
singular and plural terms, in each case unless the context
otherwise requires.
11.8. Execution. This Agreement shall be deemed to be executed at
such time as all parties hereto have signed a counterpart
hereof and each party hereto has received from each of the
other parties hereto an originally-signed counterpart or a
facsimile transmission or other replication of an
originally-signed counterpart.
11.9. Waiver. The failure of either party to enforce, in any one or
more instances, performance of any of the terms, covenants or
conditions of this Agreement shall not be construed as a
waiver or a relinquishment of any right or claim granted or
arising hereunder or of the future performance of any such
term, covenant, or condition, and such failure shall in no way
affect the validity of this Agreement or the rights and
obligations of the parties hereto. The parties acknowledge
that a waiver of any term or provision hereof may only be
given by a written instrument executed by the party granting
the waiver.
11.10. WARRANTY DISCLAIMER. SBMS' AND HIGHWAYMASTER'S OBLIGATIONS
HEREUNDER ARE IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED.
SBMS MAKES NO WARRANTIES, EXPRESS OR IMPLIED REGARDING ANY
GOODS, SERVICES OR EQUIPMENT TO BE PROVIDED HEREIN, OR AS TO
ANY CTS TO BE PROVIDED IN ANY SBMS MARKETS INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
11.11. NO LIABILITY FOR INDIRECT DAMAGES. SBMS SHALL NOT BE LIABLE TO
HIGHWAYMASTER OR ANY THIRD PARTY, AND HIGHWAYMASTER SHALL NOT
BE LIABLE TO SBMS OR ANY THIRD PARTY, FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES,
INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,
INDEMNITY, WARRANTY, STRICT LIABILITY OR TORT, ARISING FROM OR
RELATED TO THEIR PERFORMANCE OR NON-PERFORMANCE HEREUNDER.
11.12. LIMITATION OF LIABILITY. THE LIABILITY OF EITHER PARTY FOR ANY
CLAIM ASSERTED BY THE OTHER PARTY OR ANY THIRD PARTY ARISING
OUT OF THIS AGREEMENT (OTHER THAN CLAIMS BY SBMS FOR
ADMINISTRATIVE CARRIER AGREEMENT
PAGE - 16
17
REIMBURSEMENT OF CARRIER CHARGES OR INTELLECTUAL PROPERTY
INDEMNITY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT)
SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL AMOUNTS
INVOICED TO HIGHWAYMASTER IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original,
and all of which together shall constitute one and the same
instrument notwithstanding that all parties are not
signatories to each counterpart.
11.14. Assignability and Binding Effect. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and
their respective successors and permitted assigns. No party
may assign this Agreement without the prior written consent of
the other party hereto; provided, however, that SBMS may
assign this Agreement, and its rights and obligations
hereunder, to any of its Affiliates without the consent of any
other party.
11.15. Amendments. This Agreement may not be modified, amended or
supplemented except by an agreement in writing signed by all
of the parties hereto. Neither party shall accept or act upon
any instructions, directions, and/or modifications concerning
that party's performance hereunder which would affect the
terms, conditions, and/or pricing of this Agreement unless
authorized by the other party.
11.16. Expenses, Taxes, Etc. Each of the parties hereto shall pay all
fees and expenses incurred by it in connection with the
preparation and negotiation of this Agreement. There shall be
added to any charges incurred and payable by HighwayMaster
under this Agreement, an amount equal to any tariff, duty, or
levy tax including but not limited to sales, ad valorem and
use tax or any tax in lieu thereof imposed by any local,
state, or federal government or governmental agency with
respect to the Services or with respect to this Agreement, but
in no event will taxes be paid by HighwayMaster which are
based on the income or net worth of SBMS.
11.17. Third Parties. Except as expressly provided herein, nothing
herein expressed or implied is intended or shall be construed
to confer upon or give to any individual or entity other than
the parties hereto and their successors or permitted assigns,
any rights, benefits or remedies of any kind or character
whatsoever under or by reason of this Agreement.
11.18. Attorneys' Fees. Except as herein expressly provided, in any
arbitration, suit, action or proceeding brought by one party
against the other party under this Agreement, or where any
provision hereof is validly asserted as a defense, the
prevailing party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy,
subject to the limitation of liabilities set forth herein.
ADMINISTRATIVE CARRIER AGREEMENT
PAGE - 17
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11.19. Independent Contractor. SBMS is providing the Services as an
independent contractor. This Agreement shall not be construed
to create a joint venture, partnership, employment
relationship, franchise or any other legal relationship
between the parties other than that of independent contractor.
Neither party shall share or be responsible for the debts and
liabilities of the other party, or have the authority to bind
the other party in any manner.
11.20. Entire Agreement. This Agreement, together with all Exhibits
attached hereto and expressly made a part of this Agreement,
shall constitute the entire agreement between the parties
hereto with respect to the Services and shall supersede all
prior proposals, negotiations, understandings and agreements,
whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
HIGHWAYMASTER CORPORATION,
A DELAWARE CORPORATION
By: (x) William H. McCausland
-----------------------------
Name: William H. McCausland
---------------------------
Title: Sr. V. P. - Operations
--------------------------
Date: March 30, 1999
--------------------------
SOUTHWESTERN BELL
MOBILE SYSTEMS, INC.
A VIRGINIA AND DELAWARE CORPORATION
By: (x) Lisa Guarnacci for Frank Boyer
-----------------------------
Name: Frank Boyer
---------------------------
Title: V. P. Product Development
--------------------------
Date: March 30, 1999
--------------------------
ADMINISTRATIVE CARRIER AGREEMENT
PAGE - 18
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EXHIBIT 1
ADDENDUM TO INTERCARRIER ROAMER SERVICE AGREEMENT
This Addendum is made by and between SOUTHWESTERN BELL MOBILE SYSTEMS,
INC. on behalf of itself and its affiliates ("SBMS") AND [FILL IN CARRIER NAME],
on behalf of itself and its affiliates ("CARRIER").
WHEREAS, SBMS has signed an Administrative Carrier Agreement ("ACA")
with HighwayMaster Corporation ("HighwayMaster");
WHEREAS, Carrier desires to facilitate the provision of cellular roamer
service to end users of the HighwayMaster System and has signed or intends to
sign a Cellular Service Agreement with HighwayMaster to set rates and other
terms and conditions of the service to be provided by Carrier to HighwayMaster's
end users;
WHEREAS, in recognition of the unique requirements of HighwayMaster's
end users, including members of the long haul trucking industry and other
similarly situated industries with nomadic travel patterns, the Parties hereto
have assented to amend the IRSA(s) in accordance with the provisions set forth
herein;
NOW, THEREFORE, it is agreed as follows:
1. This Addendum shall amend the Intercarrier Roamer Service Agreement(s)
listed on Attachment A hereto (the "IRSA(s)"), along with any replacement
intercarrier roamer service agreements intended to replace, modify or
supersede the IRSAs. The provisions set forth herein are incorporated by
reference and shall become a part thereof. In the event that the IRSA(s) is
assigned in accordance with its terms, this Addendum shall be assigned
along with the IRSA(s).
2. Pursuant to the provisions herein stated, Carrier agrees for the term of
this Addendum to provide roaming service in accordance herewith in those
cellular markets set forth on Attachment B at the rates established by and
between Carrier and HighwayMaster. It is expressly understood and agreed
that SBMS shall have no responsibility for negotiating or setting rates for
the service to be provided by Carrier to HighwayMaster End Users.
3. SBMS is providing administrative and settlement functions for
HighwayMaster. SBMS shall participate with Carrier in the net settlement
process and provide the settlement funding account with respect to the
HighwayMaster BID(s). Notwithstanding the foregoing, HighwayMaster is the
party ultimately responsible for all of the cost of services for system
usage on Carrier's systems, at the rates set between HighwayMaster and
Carrier. Therefore, both parties agree that any disputes or adjustments
regarding Carrier's charges with respect to the HighwayMaster BID(s) shall
be handled directly between Carrier and HighwayMaster, and that any
mechanisms created by CIBERNET to adjust charges related to billing through
the Net Settlement Program will not be used with respect to the
HighwayMaster BID. HighwayMaster shall be entitled to seek amounts for any
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overcharges directly from Carrier, and Carrier shall be required to seek
amounts for any undercharges directly from HighwayMaster, and not SBMS.
4. SBMS shall notify Carrier of the NPA/NXX combinations created solely for
use by roamers as defined herein, which NPA/NXXs will be associated with a
unique HighwayMaster billing identification ("BID") assigned to SBMS. The
NPA/NXX's are not dialable from the Public Switched Telephone Network and
can only be successfully called through the HighwayMaster Network Services
Center. The HighwayMaster BID will be used nationally to identify vehicles
equipped with the HighwayMaster system. HighwayMaster will provide Carrier
with all updates of NPA/NXXs used for the purposes of this application.
HighwayMaster will provide Industry Standard Updates which shall be listed
on HighwayMaster's Technical Data Sheets. All assigned numbers will be
stored in a validation database, jointly maintained by TSI and
HighwayMaster. HighwayMaster shall provide activations, ESN changes and
updates to the database.
5. Term and Termination.
5.1. The term of this Addendum shall commence on the later of (a) the
Cutover Date under the ACA (which shall be no later than December 20,
1999); (b) the effective date of the Cellular Service Agreement
between Carrier and HighwayMaster; or (c) the date that the
HighwayMaster BID and NPA/NXXs are transferred from HighwayMaster's
current administrative carrier to SBMS; and shall continue for an
Initial Term of one (1) year. Thereafter, it shall renew for
successive one year terms, provided that either Party may terminate
this Addendum by providing written notice of termination to the other
at least sixty (60) days prior to the end of the Initial Term or any
Renewal Term.
5.2. This Addendum shall automatically terminate with respect to any
Carrier markets covered by an IRSA that expires or is terminated and
not replaced or superseded with another intercarrier roamer service
agreement between SBMS and Carrier.
5.3. SBMS may terminate this Agreement immediately upon written notice to
Carrier that: (a) the ACA between SBMS and HighwayMaster has
terminated; or (b) HighwayMaster has notified SBMS that the Cellular
Service Agreement between Carrier and HighwayMaster has terminated.
For purposes of this section, SBMS shall be entitled to rely solely on
notification from HighwayMaster with respect to whether the Cellular
Service Agreement between Carrier and HighwayMaster has terminated.
6. Neither Party hereto shall be liable to the other Party or any third party,
including affiliates, subsidiaries or partnership interests, for indirect,
incidental, consequential, reliance or special damages, including, without
limitation, damages for lost profits, regardless of the form of action
whether in contact, indemnify, warranty, strict liability or tort arising
from or related to the performance of the duties of either Party in
accordance with the terms set forth herein or the rendering of services
hereunder.
7. The Parties agree that HighwayMaster is an intended third-party beneficiary
of this Addendum.
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8. To the extent that the provisions of the Addendum conflict with the
IRSA(s), this Addendum shall control.
9. This Addendum may only be modified by written agreement of the Parties
hereto.
Southwestern Bell Mobile Systems, Inc. [CARRIER NAME]
By: By:
------------------------------- -------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------- -------------------------------
Date: Date:
------------------------------- -------------------------------
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