EXHIBIT 10.15
Execution Copy
ROAMING AGREEMENT FOR GSM/GPRS
between
AT&T WIRELESS SERVICES, INC.
having its principal place of business at:
0000 000xx Xxxxxx XX, Xxxxxxx, XX 00000
(hereinafter referred to as "AWS")
and
AMERICAN CELLULAR CORPORATION
having its principal place of business at:
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
(hereinafter referred to as "ACC")
The above-mentioned Parties agree to establish Roaming between each other and
their respective controlled Subsidiaries, by operating GSM digital cellular
telecommunications service on the terms and conditions as stated below.
In this GSM/GPRS Roaming Agreement is included the General Terms and Conditions
for GSM Roaming and the Annexes (GSM Association Permanent Reference Documents
AA.13 and AA.14).
All references to GSM should read "GSM 850; GSM 900 and/or GSM 1800/1900"
The term "Agreement" used throughout the General Terms and Conditions for GSM
Roaming shall mean this Roaming Agreement for GSM/GPRS and the General Terms and
Conditions for GSM Roaming referred to above.
In case of additional requirements, exceptions and/or contradictions between the
Agreement and any Technical Specifications (as defined below) or GSM Association
Permanent Reference Documents, the provisions of the Agreement shall prevail.
All notices, information and communication required under the Agreement shall be
given as described in Annex C.1: Agreement Management Principles.
AT&T WIRELESS SERVICES, INC. AMERICAN CELLULAR CORPORATION
Having its principal place of Having its principal place of
business: business:
0000 000xx Xxxxxx XX 00000 Xxxxxxxx Xxx
Xxxxxxx XX 00000 Xxxxxxxx Xxxx, XX 00000
By: /s/ XXXX XXXXXXX By: /s/ XXXXXXX X. XXXXXX
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
Date: July 11, 2003 Date: July 11, 2003
-------------------------------- --------------------------------
2
TABLE OF CONTENTS
Page
----
1. Parties............................................................................................4
2. Introduction.......................................................................................4
3. Definitions........................................................................................4
4. Annexes............................................................................................6
5. Scope of the Agreement.............................................................................6
6. Implementation of the network and services.........................................................7
7. Modifications......................................................................................7
8. Charging, Billing and Accounting...................................................................8
9. Customer Care.....................................................................................12
10. Confidentiality................................................................................12
11. Data Privacy...................................................................................13
12. Fraud Prevention...............................................................................13
13. Liability of the Parties.......................................................................14
14. Suspension of Services.........................................................................14
15. Force Majeure..................................................................................15
16. Duration of the Agreement......................................................................15
17. Termination of the Agreement...................................................................16
18. Changes to the Agreement, Annexes and Addenda..................................................16
19. Miscellaneous..................................................................................17
20. Choice of Law..................................................................................18
21. Dispute Resolution & Arbitration...............................................................18
3
1. PARTIES
General Terms and Conditions for GSM Roaming apply for the
Parties who have signed the
Roaming Agreement
2. INTRODUCTION
2.1 The Parties have expressed their wish to make a bilateral
agreement for the establishment of Roaming Services between
their GSM/GPRS networks and it is therefore agreed as follows:
3. DEFINITIONS
For the purpose of the Agreement the following terms shall
have the meanings set forth in their respective definitions, unless a
different meaning is specified in another provision in the Agreement:
"3GPP" shall mean the Third Generation Partnership Project.
* is defined in Section 5.2 of the GSM Operating Agreement, it
being understood that such * may not be reciprocal, i.e. the
tariffs for GSM and GPRS Roaming charged by the applicable
VPMN Operator may be different.
"EDGE" shall mean Enhanced Data for GSM Evolution, a wireless
communications technology based on GSM and defined by the
relevant ETSI or 3GPP standards.
"ETSI" shall mean the European Telecommunications
Standardisation Institute.
"GPRS Roaming" shall mean General Packet Radio Service
Roaming, providing packet mode transmission between PMNs and
interworking with external network, including GPRS Roaming
using EDGE. GPRS Roaming allows the service subscriber to send
and receive data in an end-to-end packet transfer mode,
without utilizing network resources in circuit switched mode,
outside of their HPMN.
"GSM" shall mean Global System for Mobile communications, a
wireless communications technology defined by the relevant
ETSI or 3GPP standards.
"GSM Association Permanent Reference Documents" shall mean the
documents that are established, recognized and classified as
binding by the GSM Association Plenary.
"GSM Association Plenary" shall mean the group of appointed
representatives of the Signatories of the GSM Association.
* Confidential information has been omitted and filed separately with
the Securities and Exchange Commission.
4
"GSM Operating Agreement" shall mean the GSM Operating
Agreement of even date herewith between the Parties.
"GSM Roaming" shall mean GSM Roaming which means providing
circuit mode and packet mode transmission between PMNs. GSM
Roaming allows the service subscriber to send and receive data
in an end-to-end packet transfer mode outside their HPMN and
also make circuit switched connections, such as voice calls.
"HPMN" shall mean home public mobile network.
"HPMN Operator" shall mean a Party who is providing Services
to its subscribers in a geographic area where it holds a
license or has a legal right to establish and operate a GSM
network.
"Memorandum of Understanding of GSM Association" shall mean
the agreement signed by the Network Operators and/or
Authorities on 7th September 1987 and the Addendum to the
Memorandum of Understanding dated 24th September 1991.
"MOU" shall mean a minute of use.
"Offering Memorandum" means the Offering Memorandum,
Solicitation of Consents and Votes, Plan of Reorganization,
Disclosure Statement and Ballot issued by ACC and DCC on July
14, 2003.
"Party" shall mean a signatory hereto.
"PDP" shall mean Packet Data Protocol.
"Person" shall mean an individual, corporation, limited
liability company, partnership or other legal entity.
"PMN" shall mean a public mobile network.
"PMN Operator" shall mean a Person operating a PMN.
"Restructuring" is defined in the Offering Memorandum.
"Roaming Subscriber" shall mean a Person with valid
subscription for use issued by one of the Parties and using a
GSM SIM (Subscriber Identity Module) and/or a GSM USIM
(Universal Subscriber Identity Module) who seeks GSM
service(s) in a geographic area outside the area served by its
HPMN Operator.
"Roaming" shall mean use of the network of the VPMN Operator
by the subscribers of the HPMN Operator, which shall include
GSM Roaming and GPRS Roaming.
"Services" shall mean the services for Roaming as agreed upon
by the Parties in AA.14 and may include:
5
o Circuit Switched based services, hereinafter
called "CS" as specified in XX.00, Xxxxx
1.2, article I.2.1; and/or
o Packet Switched based services, hereinafter
called "GPRS" as specified in XX.00, Xxxxx
1.2, article I.2.2
"Session" shall mean the time between PDP Context activation
until PDP Context deactivation.
"SMS" shall mean short alphanumeric messages up to 160
characters in length utilizing the digital control channel.
A "Subsidiary" of a Party means any other Person directly or
indirectly owned or controlled by the Party, for so long as
such ownership or control lasts. Ownership or control shall
exist through the direct or indirect ownership of more than
50% of the nominal value of the issued equity share capital or
of more than 50% of the shares entitling the holders to vote
for the election of directors or Persons performing similar
functions.
"TAP" shall mean Transferred Account Procedure as defined and
described in GSM Association Permanent Reference Documents.
"Technical Specifications" shall mean the technical
specifications defined and adopted by 3GPP (Third Generation
Partnership Project), including the ETSI technical
specifications defined and adopted by 3GPP.
"VPMN" shall mean a visiting public mobile network.
"VPMN Operator" shall mean a Party who allows Roaming
Subscribers to use its GSM network(s).
4. ANNEXES
The Annexes are divided as set out in the Overview of the
Annex Structure, in Common Annexes and in 2 sets of individual
Annexes; one set for each Party.
5. SCOPE OF THE AGREEMENT
5.1 In respect of and subject to their licenses or rights and
other national binding regulations to establish and operate
GSM networks, the Parties to the Agreement agree to establish
Roaming between the GSM/GPRS network(s) owned and operated by
themselves and their respective Subsidiaries in accordance
with relevant Technical Specifications and GSM Association
Permanent Reference Documents, including all the commercial
aspects, as defined in the Annexes hereto or as may be amended
from time to time in accordance with the terms of the
Agreement.
6
5.2 Additional requirements and exceptions to the Technical
Specifications and GSM Association Permanent Reference
Documents, as agreed between the Parties, are detailed in the
Annexes to the Agreement or as may be amended from time to
time in accordance with the terms of the Agreement.
6. IMPLEMENTATION OF THE NETWORK AND SERVICES
6.1 Network Implementation
The Parties agree to comply in all material respects with the
relevant requirements and procedures of the GSM Association
Permanent Reference Documents agreed by the GSM Association
from time to time and as amended by the GSM Association from
time to time.
6.2 Services
6.2.1 The Services provided by each Party are defined in
Annex I.2 as may be amended from time to time.
6.2.2 The Services made available to individual Roaming
Subscribers shall only be those for which the Roaming
Subscribers have valid subscriptions in their HPMN.
6.2.3 Both Parties agree that their Subscribers, while Roaming,
may experience conditions of service different from the
conditions in their HPMN.
6.2.4 The Parties shall use reasonable best efforts to complete,
as soon as practicable, all test procedures necessary in
order to enable the Parties to provide Services hereunder.
7. MODIFICATIONS
7.1 Nothing in this Agreement shall limit either Party's right to
implement new Services or change its existing Services as it
sees fit. Each Party agrees to use its best efforts to give
the other Party at least four (4) weeks written notice of any
major change which has an impact on Roaming.
7.2 Following such notice of change both Parties agree to discuss
the impact of any such change for Roaming Subscribers,
including Roaming Subscribers' access to these Services, and
the necessary actions to be performed, e.g. testing or
administrative activities.
7
8. CHARGING, BILLING AND ACCOUNTING
8.1 Charging and tariffs
8.1.1 Both Parties agree that when a Roaming Subscriber
uses the Services of the VPMN Operator, the Roaming
Subscriber's HPMN Operator shall be responsible for
payment of charges for the Services so used in
accordance with the tariffs of the VPMN Operator
stated in Annex I.3.1. Notwithstanding the foregoing,
the Parties agree that, for the duration of this
Agreement, and not subject to change pursuant to
Article 8.1.3 below, the VPMN Operator tariffs for
domestic GSM and GPRS Roaming shall be determined in
accordance with the provisions of this Section 8.1.1.
(a) Rates for Contract Years 1-3
(i) Table Rates. The VPMN Operator tariffs for domestic GSM
and GPRS Roaming for the first three Contract Years shall be the rates
set forth opposite such Contract Years in the table below ("Table
Rates"). "Contract Years" means the five consecutive annual periods
commencing on the date hereof.
SMS
Rate per
GSM Rate GPRS/EDGE Rate Message
Contract Year Period per MOU per Kilobyte Originated*
------------- ---------------- ------- -------------- -----------
1 7/1/03 - 6/30/04 * * *
2 7/1/04 - 6/30/05 * * *
3 7/1/05 - 6/30/06 * * *
4 7/1/06 - 6/30/07 * * *
5 7/1/07 - 6/30/08 * * *
* Includes TDMA, GSM, GPRS, EDGE. No charge for messages terminated. Rate
subject to adjustment in accordance with Section 8.1.1(g).
------------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
8
(b) Rates for Contract Years 4-5
(i) Negotiated Rates. At any time during the third quarter of
Contract Year 3, if the Parties have not adopted *, ACC may (but shall
not be obligated to) initiate, by notice to AWS, a 30-day period of
roaming rate and exclusivity negotiations, provided, that such 30-day
period must be commenced and completed within the third quarter of
Contract Year 3. If negotiations are initiated by ACC, both Parties
will negotiate in good faith to seek to agree on fair and reasonable
GSM and GPRS roaming rates and exclusivity provisions for Contract
Years 4 and 5.
(ii) Formula Rates. If ACC initiates the negotiation
contemplated in clause (b)(i) and the Parties do not agree on GSM and
GPRS roaming rates and exclusivity provisions for Contract Years 4 and
5 during the aforementioned 30-day period, AWS will deliver to ACC,
within 30 days following the end of the third quarter of Contract Year
3, its calculation of the Formula Rates for the 12-month period ending
at the end of the third quarter of Contract Year 3. Within ten business
days after receipt of such calculation, ACC will notify AWS whether it
elects to have such Formula Rates (or, if lower, the Table Rates for
Contract Year 4) apply to Contract Year 4. If ACC so elects, then (x)
the Formula Rates (as set forth in the aforementioned calculation) or,
if lower, the Table Rates for Contract Year 4 will apply to Contract
Year 4, (y) the Formula Rates (as determined pursuant to the
definitions of ARPMin and ARPByte) or, if lower, the Table Rates for
Contract Year 5 will apply to Contract Year 5 and (z) the exclusivity
obligations of AWS under Article 4 of the GSM Operating Agreement will
continue in effect during Contract Years 4 and 5, subject to the terms
and conditions of the GSM Operating Agreement.
(iii) Table Rates. If either (x) ACC does not initiate
negotiations pursuant to Section 8.1.1(b)(i) or (y) ACC initiates the
negotiation of rates and exclusivity, the Parties are unable to agree
upon new rates or exclusivity, and ACC elects not to apply the Formula
Rates (or, if lower, the Table Rates for Contract Year 4) to Contract
Year 4 (or fails to make a timely election), then (A) the Table Rates
for Contract Year 3 * will apply to Contract Years 4 and 5 and (B) if
the Parties have not adopted *, the obligations of AWS under Section 4
of the GSM Operating Agreement will terminate at the end of Contract
Year 3.
------------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
9
(iv) *.
(c) Rates after Contract Year 5. If the Term of the Agreement is
extended for any period after Contract Year 5 pursuant to Section 5.2 of the GSM
Operating Agreement, the VPMN Operator tariffs for domestic GSM and GPRS Roaming
for such period will be *.
(d) Voice over Internet Protocol. Once Voice over Internet Protocol
("VoIP") is implemented in the ACC GSM Systems (as defined in the GSM Operating
Agreement), voice traffic utilizing this technology will be measured in
kilobytes, and accordingly it will be necessary to convert kilobytes into voice
MOUs for billing purposes. Unless a more accurate equivalent is available at the
time of VoIP implementation, the following kilobytes per voice MOU equivalent
shall be used unless the Parties otherwise agree. Prior to implementation of the
Adaptive Multi-Rate ("AMR") codec, 720 kilobytes per MOU equivalent shall be
used for billing purposes. After the implementation of the AMR codec, 300
kilobytes per MOU equivalent shall be used for billing purposes. The Parties
shall implement the AMR codec in their respective GSM Systems (as defined in the
GSM Operating Agreement) as soon as commercially practicable, and shall use
commercially reasonable efforts to adopt improved speech codecs as and when they
become generally available on commercially reasonable terms.
(e) Definitions
"ARPByte" means, with respect to any 12-month period, a rate
per minute calculated by dividing AWS GPRS and succeeding data
technology revenue for the immediately preceding 12-month period by AWS
billed kilobytes for the immediately preceding 12-month period. For
purposes of this definition, AWS GPRS and succeeding data technology
revenue includes home revenue and incollect revenue from GPRS and
succeeding data technologies (including but not limited to EDGE and
UMTS) but excludes outcollect revenue and equipment revenue; and AWS
billed kilobytes includes home kilobytes and incollect kilobytes from
GPRS and succeeding data technologies (including but not limited to
EDGE and UMTS).
"ARPMin" means, with respect to any 12-month period, a rate
per minute calculated by dividing AWS gross revenue for the immediately
preceding 12-month period by AWS billed minutes for the immediately
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
10
preceding 12-month period. For purposes of such definition, AWS gross
revenue includes all AWS revenue except outcollect revenue and
equipment revenue; and AWS billed minutes includes all home MOUs and
incollect MOUs.
"Formula Rate" means (i) with respect to GPRS Roaming, a rate
per kilobyte equal to *, and (ii) with respect to GSM Roaming, a rate
per minute equal to *
(f) Quarterly Reports. From the beginning of Contract Year 2 until the
end of Contract Year 3, if ACC so requests, AWS will deliver to ACC, on a
quarterly basis, reports setting forth the components of the calculation of its
monthly ARPMin and ARPByte rates.
(g) SMS Arrangements. The SMS rate will be *per message originated;
provided, that if the parties are able to connect their SMS networks directly,
the SMS rate will be *per message originated. The parties will use commercially
reasonable efforts to connect their SMS networks directly.
8.1.2 However, the HPMN Operator shall not be liable for the payment
of charges for chargeable Services provided by the VPMN
Operator without Subscriber Identity Authentication as defined
in GSM Association Permanent Reference Documents, except to
the extent that the HPMN Operator actually recovers all
charges due in relation to the Roaming Subscriber. In the case
of re-authentication malfunction, procedures are further
detailed in Annex I.5.2.
8.1.3 Notwithstanding Article 18.1 either Party shall have the right
to vary its tariff stated in the Annex I.3.1 or subsequent
variation thereof, other than those set forth in 8.1.1 above.
In the case of scheduled changes (as described in BA.27) a
Party shall give 60 days written notice of any variation to
its tariff and the new change shall take effect on the first
day of the month following the expiration of the 60 day notice
period. In the case of unscheduled changes (as described in
BA.27) a Party shall use all reasonable endeavours to give
adequate notice of such changes and the new change shall take
effect on the first day following the expiration of the notice
period given. Any variation in the tariff shall be deemed to
be incorporated into the Agreement.
8.2 Implementation of TAP
------------
* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission
11
The implementation of TAP shall be done according to the GSM
Association Permanent Reference Documents and the provisions
set out in the Annex C.3.1.
8.3 Billing and Accounting
The implementation of billing and accounting shall be done
according to the GSM Association Permanent Reference Documents
and the provisions set out in Annex C.3.2 as amended from time
to time or where there is a differing accounting practice or
regulations in the U.S., the U.S. practice or regulations
shall prevail.
9. CUSTOMER CARE
The responsibilities of each Party concerning Customer Care
are described in Annex C.4.
10. CONFIDENTIALITY
10.1 The Parties agree that all aspects of the contents of the
Agreement shall be treated as confidential and that no
information in respect of the content of the Agreement shall
be disclosed without the prior written consent of both of the
Parties except (i) as required by law or legal process, (ii)
to a Party's employees who need to know same and such Party's
attorneys, advisors, representatives, agents, lenders,
insurers, and current or potential investors (collectively,
"its Representatives"), (iii) in the Offering Memorandum and
such other disclosure documents as, in the good faith judgment
of DCC's outside legal counsel, are necessary to effect the
Restructuring ("Reorganization Disclosure") and (iv) as
necessary to implement the Agreement and inform customers.
10.2 The Parties hereby agree to treat all information exchanged
between them in connection with the Agreement (hereinafter
referred to as "Information") as confidential and agree not to
disclose such Information in any manner whatsoever, in whole
or in part except as provided in this Article 10. The other
Party shall not use any Information other than in connection
with (i) the discussions between them and any transactions
resulting therefrom, (ii) for the purpose of obtaining funds
or insurance or in connection with any bona fide business
transaction, in which case the disclosing Party shall advise
the lenders or insurance companies of such Party's
confidentiality obligation under this Article 10 before
disclosing the Information and (iii) Reorganization
Disclosure. Each Party shall be liable in accordance with
Article 13 to the other Party in respect of any unauthorized
disclosure of
12
Information made by its Representatives to whom it has
disclosed Information.
10.3 In addition to the above, Information may be transmitted to
governmental, judicial or regulatory authorities, as may be
required by any governmental, judicial or regulatory
authority, provided, that the Party transmitting such
Information gives the other Party reasonable notice and
opportunity to seek confidential treatment of such Information
by any such authority.
10.4 For the purposes of the Agreement, Information shall not be
considered to be confidential if such Information is:
a) in or passed into the public domain other than by
breach of this Article;
b) known to a receiving Party prior to the disclosure by
a disclosing Party;
c) disclosed to a receiving Party without restriction by
a third Party having the full right to disclose; or
d) independently developed by a receiving Party to whom
no disclosure of confidential Information relevant to
such Information has been made.
10.5 Article 10 shall survive the termination of the Agreement for
a period of two years.
11. DATA PRIVACY
11.1 Each Party's obligations hereunder to transfer Information to
the other Party shall not apply to the extent that a Party is
prohibited from doing so by applicable regulations and laws
applicable to Roaming and/or data protection.
11.2 The Parties confirm that they shall comply with applicable
Data Privacy Regulations/Laws. Further Details of Data Privacy
aspects are given in Annexes C.6. and I.6.
12. FRAUD PREVENTION
The Parties shall co-operate in good faith regarding the
procedures concerning fraudulent or unauthorized use by
Roaming Subscribers. Details of Fraud Prevention procedures
are given in Annex C.7.
13
13. LIABILITY OF THE PARTIES
In no event shall either Party be liable for any consequential
damage or loss of whatsoever nature, including but not limited
to, loss of profit or loss of business.
14. SUSPENSION OF SERVICES
14.1 Suspension of Services to individual Roaming Subscribers or
all Roaming Subscribers
Notwithstanding anything in the Agreement to the contrary, the
VPMN Operator may without liability suspend or terminate all
or any of its Services to Roaming Subscriber(s) in
circumstances where it would suspend or terminate those
Services to its own subscribers, including but not limited to:
a) subscribers using equipment which is defective or
illegal;
b) subscribers causing any technical or other problems
on the VPMN Operator's network;
c) suspected fraudulent or unauthorized use;
d) authentication of the subscription not being
possible; or
e) maintenance or enhancement of the network.
14.2 Suspension of Services to all Roaming Subscribers by VPMN
Operator
In case of a proposed suspension of Services to all Roaming
Subscribers, the VPMN Operator shall use its best efforts to
give four (4) weeks written notice to the other Party prior to
the suspension taking effect. If the suspension continues for
more than six (6) months, the other Party shall have the right
to terminate the Agreement by written notice.
14.3 Suspension of Services to all Roaming Subscribers by HPMN
Operator
The HPMN Operator has the right at any time, without
discriminating among operators and without liability, in the
event of suspected fraudulent or unauthorized use of the VPMN
network, by giving reasoned written notice to the VPMN
Operator, to suspend access to the VPMN Services for its own
subscribers Roaming in the VPMN, or if it is technically more
practicable, to require that the
14
VPMN Operator takes actions to suspend all of its Services to
Roaming Subscribers of the HPMN Operator. The VPMN Operator
shall use its best efforts to comply with such requirement
within five (5) working days after receipt of the notice.
The suspension shall be removed as soon as the reason for the
suspension has been overcome by the VPMN Operator to the
reasonable satisfaction of the HPMN Operator.
15. FORCE MAJEURE
15.1 Non-performance or defective performance of either Party's
obligations pursuant to the Agreement or delay in performing
same shall not constitute a breach of the Agreement to the
extent, and for as long as, it is due to reasons outside such
Party's control (in each case a "Force Majeure Event"),
including, but not being limited to, governmental action, or
requirement of regulatory authority, acts of God, terrorism,
riots, revolution, lockouts, strikes, shortage of
transportation, war, rebellion or other military action, fire,
flood, explosion, sabotage, nuclear incidents, earthquakes,
lightning, storms, sinkholes, epidemics, delays or
non-performance of suppliers or subcontractors, natural
catastrophes, or any other unforeseeable obstacles that a
Party is not able to overcome with reasonable efforts. The
Party prevented from fulfilling its obligations shall on
becoming aware of such Force Majeure Event inform the other
Party in writing of such Force Majeure Event as soon as
possible. If the Force Majeure Event continues for more than
six (6) consecutive months, either Party shall have the right
to terminate the Agreement with immediate effect by written
notice.
15.2 If the affected Party fails to inform the other Party of the
occurrence of a Force Majeure Event in accordance with Article
15.1 above, then such Party thereafter shall not be entitled
to refer to such event as force majeure as a reason for
non-fulfillment, to the extent such Party is disadvantaged by
such delay. This obligation does not apply if the Force
Majeure Event is known by both Parties or the affected Party
is unable to inform the other Party due to the Force Majeure
Event.
16. DURATION OF THE AGREEMENT
The term of the Agreement (the "Term") shall commence on the
date hereof and, unless the Agreement shall have earlier
terminated in accordance with Section 17.1, shall expire on
the fifth anniversary of the date hereof, subject to Section
5.2 of the GSM Operating Agreement.
15
17. TERMINATION OF THE AGREEMENT
17.1 In addition to the provisions of Article 16, the Agreement may
be terminated as follows:
a) by mutual agreement of the Parties;
b) by one of the Parties, with immediate effect, when
the other Party is in material breach of the
Agreement and does not remedy, such breach within
thirty (30) days of receipt of a written notice to
such effect;
c) by one of the Parties, with immediate effect, if the
other Party becomes bankrupt or insolvent or enters
into any composition or arrangement with its
creditors, except in accordance with the plan of
reorganization of ACC contemplated by the Offering
Memorandum, and that other Party is not able to
ensure performance of its monetary obligations under
the Agreement by a guarantee from a first class bank,
payable on first written demand;
d) by written notice of either Party to the other in the
event that Roaming becomes technically or
commercially impracticable on either Party's network
and the provisions set out in Article 14 are not
sufficient to solve the problem or if an unacceptable
level of unauthorized use occurs and the other Party
is not capable of remedying such unauthorized use to
normal levels within sixty (60) days of receipt of a
written notice to such effect; or
e) subject to Article 19.1 by one of the Parties, with
immediate effect and as to the affected licensed area
only, in the event a final order by the relevant
governmental authority revoking or denying renewal of
the GSM license(s) or permission to operate a GSM
network(s) granted to the other Party, or any other
license necessary to operate the GSM Service(s),
takes effect.
18. CHANGES TO THE AGREEMENT, ANNEXES AND ADDENDA
18.1 Any amendments and/or additions to the Agreement and/or
Annexes and/or Addenda shall be valid only if made in writing
and signed by duly authorized representatives of both Parties
hereto.
18.2 It is also recognized by the Parties that it may be
appropriate to seek changes to the Agreement in the light of
experience and development in the GSM Association and the
establishment of Roaming between the Parties. Accordingly, in
such event the Parties shall enter into good faith discussions
with a view to agreeing mutually acceptable modifications to
the Agreement.
16
Without limiting the generality of the foregoing, the Parties
agree to modify the Agreement as contemplated by Section
5.2(a) of the GSM Operating Agreement.
19. MISCELLANEOUS
19.1 Entire Agreement
The Agreement and the GSM Operating Agreement, together with
any annexes, schedules and exhibits hereto and thereto,
contain the entire agreement and understanding of the Parties
relating to the subject matter hereof and thereof, and
supersede all prior negotiations, proposals, offers,
agreements and understandings (written or oral) relating to
such subject matter.
19.2 Successors and Assigns
The Agreement and the rights and obligations specified herein
shall be binding upon the Parties hereto and their respective
permitted successors and permitted assigns, and neither Party
shall sell, transfer or assign the Agreement or any part,
interest, right or obligation hereunder, including by
operation of law, except that a Party shall have the right to
transfer or assign the Agreement in whole (but not in part) to
a Subsidiary who is also the Signatory to the GSM Association
and ACC shall have the right to transfer or assign the
Agreement in whole to a Subsidiary of Xxxxxx Communications
Corporation that directly or indirectly owns, operates and
controls wireless communications systems in the ACC Markets
(as defined in the GSM Operating Agreement) and does not own,
manage, operate or control any other wireless communications
systems, provided, that such assignee expressly assumes, by
written instrument approved by the Parties, all of the
obligations of such Party hereunder and thereby becomes a
Party hereunder, it being understood that such assignment
shall not release the assigning Party of its obligations under
Article 10 of this Agreement. No person other than a Party to
the Agreement shall acquire any rights hereunder as a
third-party beneficiary or otherwise by virtue of the
Agreement.
19.3 Headings
The headings of the Agreement are for the convenience of
reference only and shall in no way limit or affect the meaning
or interpretation of the provisions of the Agreement.
19.4 No waiver
17
Failure by any Party at any time or times to require
performance of any provisions of the Agreement shall in no
manner affect its rights to enforce the same, and the waiver
by any Party of any breach of any provisions of the Agreement
shall not be construed to be a waiver by such Party of any
succeeding breach of such provision or waiver by such Party of
any breach of any other provision hereof.
19.5 Provisions severable
If any part of the Agreement is held to be invalid or
unenforceable, such determination shall not invalidate any
other provision of the Agreement; and the Parties shall
attempt, through negotiations in good faith, to replace any
part of the Agreement so held to be invalid or unenforceable.
The failure of the Parties to agree on such replacement shall
not affect the validity of the remaining parts of the
Agreement.
20. CHOICE OF LAW
The Agreement and any matters relating hereto shall be
governed by and construed in accordance with the internal laws
of the State of
Delaware.
21. DISPUTE RESOLUTION & ARBITRATION
21.1 If a dispute arises out of or relating to this Agreement, or
the transactions contemplated hereby, or the construction,
interpretation, performance, breach, termination,
enforceability or validity thereof, whether such claim is
based on rights, privileges or interests recognized by or
based upon contract, tort, fraud, misrepresentation, statute,
common law or any other legal or equitable theory, and whether
such claim existed prior to or arises on or after the date
hereof (a "Dispute"), the dispute resolution processes set
forth in this Article 21 shall govern the resolution of such
dispute.
21.2 If a Dispute cannot be resolved by the executives having
primary managerial responsibility for the matter to which the
Dispute pertains, the Parties shall attempt in good faith to
resolve such Dispute promptly by negotiation between
executives who have authority to settle the Dispute and who
are at the level of the executives who have negotiated this
Agreement ("Senior Party Representatives").
21.3 A Party may provide any other Party notice (a "Dispute
Notice") of any Dispute that has not been resolved in the
normal course of business. Within ten business days after
delivery of the Dispute
18
Notice, the receiving Party shall submit to each other Party a
response (the "Response"). The Dispute Notice and the Response
shall each include (a) a statement setting forth the position
of the Party providing such notice and a summary of arguments
supporting such position, and (b) the name and title of such
Party's Senior Party Representative and any other Persons who
will accompany the Senior Party Representative at the meeting
at which the Parties will attempt to settle the Dispute.
Within 30 business days after delivery of the Dispute Notice,
the Senior Party Representatives of the Parties shall meet at
a mutually acceptable time and place, and thereafter as often
as they reasonably deem necessary, to attempt to resolve the
Dispute. All reasonable requests for information made by one
Party to another will be honored.
21.4 If the Dispute has not been resolved within 50 business days
after delivery of the Dispute Notice, or if the Parties fail
to meet within 30 business days after delivery of the Dispute
Notice, any Party may initiate arbitration of the Dispute as
provided below. If no Party initiates arbitration within 60
business days after delivery of the Dispute Notice, then the
Parties shall automatically be released from any and all
liability for the Dispute.
21.5 All negotiations pursuant to this section shall be treated as
compromise and settlement negotiations. Nothing said or
disclosed, nor any document produced, in the course of such
negotiations that is not otherwise independently discoverable
shall be offered or received as evidence or used for
impeachment or for any other purpose in any current or future
arbitration. The Parties agree that all communications and
negotiations between the Parties during the dispute resolution
process, any settlements agreed upon during the dispute
resolution process and any information regarding the other
Party obtained during the dispute resolution process (that are
not already public knowledge) are confidential and may be
disclosed only to employees and agents of the Parties who
shall have a "need to know" the information and who shall have
been made aware of the confidentiality obligations set forth
in this Article 21, unless the Party is required by law to
disclose such information.
21.6 If the Dispute is not resolved as provided in Sections 21.2
through 21.4 above, then any Party may initiate arbitration
proceedings by providing each other Party notice of such
initiation of arbitration. The Dispute shall then be settled
by arbitration in accordance with the CPR Non-Administered
Arbitration Rules in effect on the date hereof, by a panel of
three arbitrators. Each Party shall select one
19
of the three arbitrators and the two arbitrators so chosen
shall select the third arbitrator. The arbitrators shall be
governed by the United States Arbitration Act, 9 U.S.C.
Sections 1-16, and judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction
thereof. The place of arbitration shall be chosen by the three
arbitrators. The arbitrators shall not order pre-hearing
discovery of documents or the taking of depositions, although
the arbitrators may compel the attendance of witnesses and the
production of documents at the hearing to the extent permitted
by the CPR Non-Administered Arbitration Rules.
21.7 If a Party does not provide a Dispute Notice within one year
following the time the Party first knows of the existence of
the acts or omissions that give rise to the Dispute, the Party
shall be forever estopped from asserting the Dispute against
any other Party.
21.8 The reasonable out-of-pocket costs (including reasonable
attorneys' fees and expenses) of the prevailing Party and the
fees of the arbitrators in any arbitration proceeding pursuant
to this Article 21 shall be paid by the other Party. The
arbitrators shall determine which Party is the prevailing
Party for purposes of this paragraph, and shall include such
determination in their award. If the arbitrators determine
that neither Party is the prevailing Party for purposes of
this paragraph, then each Party shall bear its own costs and
expenses, including attorneys' fees and expenses, and the
Parties shall share equally the fees of the arbitrators.
21.9 Notwithstanding the foregoing, nothing in this Agreement shall
preclude the Parties from seeking injunctive or other
equitable relief from a court with regard to any breach of
this Agreement.
20
OVERVIEW OF THE ANNEX STRUCTURE
COMMON ANNEXES:
ANNEX NO. ANNEX NAME
--------- ----------
ANNEX C.1 Agreement Management Principles
ANNEX C.2 Services
ANNEX C.3 Billing and Accounting
ANNEX C.3.1 Information on Billing Data
ANNEX C.3.2 Settlement Procedure
ANNEX C.4 Customer Care Principles
ANNEX C.5 Technical Aspects
ANNEX C.5.1 Testing
ANNEX C.5.2 Security
ANNEX C.5.3 Information on Signalling Interconnection and / or
IP Connectivity
ANNEX C.6 Data Privacy, General Principles
ANNEX C.7 Fraud Prevention Procedures
ANNEX C.8 Additional annexes (optional)
21
INDIVIDUAL ANNEXES:
AWS ACC
------------------------------------------------------ -----------------------------------------------------
ANNEX I ANNEX NAME ANNEX I ANNEX NAME
SECTION NO.: SECTION NO.:
-------------------------- ------------------------- ----------------------- --------------------------
0 REVISION SHEET 0 REVISION SHEET
1 AGREEMENT MANAGEMENT 1 AGREEMENT MANAGEMENT
PRINCIPLES PRINCIPLES
1.1 Contact Points for 1.1 Contact Points for
Agreement Management Agreement Management
2 SERVICES 2 SERVICES
2.1 GSM services and GPRS PS 2.1 GSM services and GPRS PS
Capabilities provided Capabilities provided
for Roaming Subscribers for Roaming Subscribers
2.2 Additional Services 2.2 Additional Services
provided for Roaming provided for Roaming
Subscribers Subscribers
2.3 SMS Interworking Services 2.3 SMS Interworking Services
2.4 GPRS PS Services and 2.4 GPRS PS Services and
Applications Applications
3 BILLING AND ACCOUNTING 3 BILLING AND ACCOUNTING
3.1 GSM Roaming Tariffs 3.1 GSM Roaming Tariffs
3.2 Mailing list for TAP 3.2 Mailing list for TAP
3.3 Mailing list for Inter 3.3 Mailing list for Inter
PMN Invoices PMN Invoices
3.4 Application of VAT 3.4 Application of VAT
4 CUSTOMER CARE 4 CUSTOMER CARE
4.1 Inter Operator Customer 4.1 Inter Operator Customer
Care Contact Care Contact
4.2 Customer Services Numbers 4.2 Customer Services Numbers
22
4.3 Customer Care Contact 4.3 Customer Care Contact
Numbers Numbers
5 TECHNICAL ASPECTS 5 TECHNICAL ASPECTS
5.1 Contact Points for 5.1 Contact Points for
Handling Test SIM and/or Handling Test SIM and/or
USIM Cards USIM Cards
5.2 Security 5.2 Security
6 DATA PRIVACY 6 DATA PRIVACY
6.1 National Requirements 6.1 National Requirements
for Data Privacy for Data Privacy
7 FRAUD PREVENTION 7 FRAUD PREVENTION
PROCEDURES PROCEDURES
7.1 Information on Fraud 7.1 Information on Fraud
Prevention Procedures Prevention Procedures
8 ... ADDITIONAL ANNEXES 8 ... ADDITIONAL ANNEXES
(OPTIONAL) (OPTIONAL)
23
