1
[GTE LOGO]
TRANSITION AGREEMENT
dated April 29, 1999
BY AND BETWEEN
GTE WIRELESS SERVICE CORPORATION,
FORMERLY KNOWN AS GTE MOBILE COMMUNICATIONS SERVICE CORPORATION
AND
HIGHWAYMASTER CORPORATION
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
2
TRANSITION AGREEMENT
THIS TRANSITION AGREEMENT (the "Agreement"), dated as of March 19, 1999
is entered into by and between GTE Wireless Service Corporation f/k/a GTE Mobile
Communications Service Corporation, a Delaware corporation ("GTE") and
HighwayMaster Corporation, a Delaware corporation ("HighwayMaster").
WITNESSETH:
WHEREAS, HighwayMaster and GTE are parties to a Service Agreement dated
May 20, 1996; and
WHEREAS, both HighwayMaster and GTE wish to terminate the Service
Agreement between the Parties and transition the services provided under the
Service Agreement to a new Carrier;
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:
SECTION 1
DEFINITIONS
Unless the context otherwise requires, the terms defined in this
Section 1 shall have the meanings herein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
herein defined:
"AFFILIATE" shall mean a Person, association, partnership, corporation
or joint-stock company or trust that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with one
of the Parties to this Agreement. Control shall be defined as (i) ownership of a
majority of the voting power of all classes of voting stock or (ii) ownership of
a majority of the beneficial interests in income and capital of an entity other
than a corporation.
"BID" shall mean the billing identification code that allows an NPA/NXX
in a CGSA to be defined as a stand alone billing center.
"DESIGNATED GTE RECIPIENT" shall mean the General Counsel of GTE, or
any other individual designated by GTE in writing, pursuant to Section 13.4 of
this Agreement, to be the recipient of HighwayMaster Information.
"DESIGNATED HIGHWAYMASTER RECIPIENT" shall mean the General Counsel of
HighwayMaster, or any other individual designated by HighwayMaster in writing,
pursuant to Section 13.4 of this Agreement, to be the recipient of GTE
Information.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
3
"CARRIER" shall mean an entity licensed by the Federal Communications
Commission ("FCC") to provide cellular service, broadband personal
communications services ("PCS"), or specialized mobile radio ("SMR") service
through the use of the entity's owned and operated licensed facilities.
"CGSA" shall mean a cellular geographic service area of a Carrier which
is defined by the FCC as either a metropolitan service area ("MSA") or a rural
service area ("RSA").
"CLIENT" shall mean the end user of the HighwayMaster System.
"CTS" shall mean cellular telephone service as available in any
designated and authorized CGSA.
"CTS USAGE" shall mean the use of any CTS for any purpose, including
but not limited to, voice, data and roaming.
"ESN" shall mean electronic serial number assigned to each individual
unit of the HighwayMaster System.
"FCC" shall mean the Federal Communication Commission.
"GTE CARRIER" shall mean a Carrier that is a GTE Affiliate or
subsidiary.
"GTE INFORMATION" shall mean any and all information, in any tangible
or electronic form, which bears a legend "GTE Confidential Information - Subject
to Use and Disclosure Restrictions Pursuant to Contract" and which has been
provided to the Designated HighwayMaster Recipient; provided, however, the
foregoing shall not include that portion of any information made available by
GTE without restrictions on use or disclosure or that portion of any information
which is readily discernable by the performance of this Agreement. All other
information, even if in writing or other tangible form, but which does not bear
the legend described above, shall not be considered "GTE Information." In
addition, this definition is subject to the limitations of Section 8.2(b) below.
"GTE MARKET" shall mean any CGSA, whether MSA or RSA, in which an
Affiliate of GTE holds the FCC license or has binding management authority in
such CGSA. Attached hereto as Exhibit A is a list of all current GTE Markets.
This shall not include any CGSA acquired or assimilated through the proposed
merger of Xxxx Atlantic Corporation and GTE Corporation.
"HIGHWAYMASTER CORE FUNCTIONALITY" shall mean any HighwayMaster System
or portion thereof currently in use by HighwayMaster in its operations that has
the following capabilities: (i) a mobile unit with capabilities that include the
monitoring of cellular overhead paging channels to determine from internal
tables the appropriate selection of A-side or B-side Carriers, automated
transmission of location notification to a central complex or a functional
equivalent of such process for call delivery purposes
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-2-
4
and the ability to answer incoming calls and automatically respond to data
exchange requests and (ii) central complex processing of such calls, which
include data store-and-forward and call delivery to and from such mobile units.
"HIGHWAYMASTER INFORMATION" shall mean any and all information, in any
tangible or electronic form, which bears a legend "HighwayMaster Confidential
Information - Subject to Use and Disclosure Restrictions Pursuant to Contract"
and which has been provided to the Designated GTE Recipient; provided, however,
the foregoing shall not include that portion of any information made available
by HighwayMaster without restrictions on use or disclosure or that portion of
any information which is readily discernable by the performance of this
Agreement. All other information, even if in writing or other tangible form, but
which does not bear the legend described above, shall not be considered
"HighwayMaster Information." In addition, this definition is subject to the
limitations of Section 8.2(b) below.
"HIGHWAYMASTER SYSTEM" shall mean the system module ("System Module"),
display module ("Display Module"), Network Services Center(s) ("NSC"),
HighwayMaster software provided to its Clients, interface between HighwayMaster
and the NSC, interface between the NSC and System Module.
"MATERIAL DEFAULT" means any Material Breach 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.
"MATERIAL BREACH" means, with respect to either Party to this
Agreement, a breach of any obligation, representation, warranty, or covenant of
such Party contained in this Agreement.
"MINIMUM ROAMING REQUIREMENT" shall mean the minimum amount of roaming
that must be maintained by each HighwayMaster System or any portion thereof to
be measured as follows: During the Term of this Agreement and any extension,
renewal or continuation thereof, each HighwayMaster System's CTS Usage must be
in multiple SIDs for a minimum of seventy percent (70%) of all CTS Usage for
each and every Vehicle equipped with a HighwayMaster System during two (2)
consecutive months of each quarter in a calendar year. Such quarters to be
measured from January 1 through March 31, April 1 through June 30, July 1
through September 30 and October through December 31 for each calendar year in
the Term of this Agreement.
"NON-GTE CARRIER" shall mean a Carrier other than GTE or one of its
Affiliates that provides CTS for use with a HighwayMaster System under a Roaming
Addendum.
"NON-GTE MARKET" shall mean any CGSA, whether MSA or RSA, in which a
Non-GTE Carrier holds the FCC license or have binding management authority to
provide CTS in such CGSA.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-3-
5
"NPA/NXXS [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.] Such
NPA/NXXs are not North American Numbering Plan Numbers.
"NUMBER" or "MIN" shall mean the numerical code or phone number
assigned to the cellular mechanism in the HighwayMaster.
"PARTIES" shall mean GTE and HighwayMaster.
"PARTY" shall mean either GTE or HighwayMaster.
"PERSON" shall mean any individual, corporation, partnership, firm,
joint venture, association, joint stock company, trust, estate, unincorporated
organization, governmental or regulatory body or other entity.
"ROAMING" shall mean the CTS provided from one Carrier to another
Carrier for the purpose of permitting a Carrier's end user's to have service
when such Carrier's end user is in a CGSA not owned or managed by such Carrier.
"ROAMING ADDENDUM" or "ROAMING ADDENDA" shall mean the addendums to
GTE's Roaming Agreements that enable GTE to provide HighwayMaster with CTS in
Non-GTE Markets.
"ROAMING AGREEMENTS" shall mean the Roaming Agreements between GTE or
one of its Affiliates and a Non-GTE Carrier for the provision of Roaming.
"ROAMING RATE" shall mean the agreed upon rate set forth in the Roaming
Addenda by each Non-GTE Carrier in a CGSA operated by such Carrier for use of
CTS in that Carrier's CGSA and the rate charged by GTE for use of CTS in GTE
Markets with the HighwayMaster System.
"SERVICE PROVIDER" shall mean the Carrier that replaces GTE for
provision of all or any portion of Services under the Services Agreement.
"SERVICES" shall mean the services to be provided to HighwayMaster by
GTE for use with the HighwayMaster System as described or identified in this
Agreement.
"SERVICE AGREEMENT" shall mean that certain Service Agreement entered
into between HighwayMaster and GTE on March 20, 1996.
"SID" shall mean the five digit system identification code assigned to
each Carrier by the FCC.
"VEHICLES" shall mean modes of transportation such as trucks, vans,
recreational vehicles or waterway barges that are equipped with all or a portion
of an activated and in use HighwayMaster System that has the HighwayMaster Core
Functionality.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-4-
6
"VOICE CTS" shall mean the use of any cellular airtime for the purpose
of transmitting voice communications via cellular networks.
SECTION 2
GENERAL PURPOSE
This Agreement is for the purpose of setting forth the obligations of
each Party from the date of execution of this Agreement until its termination on
September 30, 1999. Both Parties acknowledge and agree that this Agreement will
supercede any and all other Agreements prior to this date between the Parties,
and that the Service Agreement is hereby terminated and of no further force or
effect as of the date of this Agreement. HighwayMaster acknowledges and agrees
that GTE has discontinued the program under the Service Agreement, and that it
is no longer available from GTE. Neither Party has any expectation or right of
renewal with respect to this Agreement beyond September 30, 1999, and GTE will
continue the provision of the following Services only through the earlier of (i)
the expiration of this Agreement on September 30, 1999; (ii) termination of this
Agreement prior to September 30, 1999 or (iii) the transition of the Services to
a new Service Provider.
SECTION 3
GTE OBLIGATIONS
3.1 RESTRICTION ON SERVICES. GTE is providing the Services hereunder
only for use by HighwayMaster with Clients who employ the HighwayMaster Core
Functionality with a HighwayMaster System in North America. Further, such
Services will only be available in CGSAs for which CTS is provided to GTE for
use with the HighwayMaster System.
3.2 NPA/NXXS. GTE will maintain the One Hundred Thousand (100,000)
designated NPA/NXXs combinations already used by HighwayMaster to be used solely
in connection with the HighwayMaster System during the term of this Transition
Agreement. HighwayMaster agrees and understands that such NPA/NXXs are not
dialable from the public switched telephone network. GTE will not issue and
HighwayMaster will not request any additional Numbers under this Agreement.
3.3 BID. During the Term of this Agreement, GTE will maintain the
current BID, 30445, solely for the NPA/NXXs under this Agreement as permitted by
any laws, rules or regulations. Such BID permits identification of Vehicles in
each CGSA and the tracking identification for CTS usage as permitted by any
laws, rules or regulations.
3.4 BILLING SERVICES.
(a) GTE shall maintain a detailed record of CTS Usage by
HighwayMaster on a magnetic billing tape (the "Tape") in the format currently
sent to HighwayMaster. Such Tape will include call detail records for
HighwayMaster's usage of CTS, but in no instance will GTE be required to provide
HighwayMaster with any tape or documents that reflect CTS Usage by entities not
utilizing a HighwayMaster System.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-5-
7
Within thirty (30) days of the end of each billing cycle GTE will provide
HighwayMaster with a summary invoice (the "Invoice") of charges for CTS Usage
during that billing cycle and the Tape. Such Invoices will provide a summary of
the charges by GTE Carriers and Non-GTE Carriers for CTS Usage in each Carriers
respective CGSAs. GTE shall not be liable for any inaccuracies in a Carrier's
billing of HighwayMaster in a Non-GTE market under any circumstances.
HighwayMaster expressly acknowledges that some charges incurred in a billing
cycle will not appear on the Invoice or in the Tape for such billing cycle and
that such charges will appear on subsequent Invoices. HighwayMaster will be
responsible for payment of any and all charges that are delayed or appear on
subsequent Invoices. HighwayMaster will be responsible for payment of the full
amount of each Invoice in accordance with the provisions of Section 9 of this
Agreement even if HighwayMaster has not received payment from its Clients or any
other third party.
(b) Notwithstanding the above subsection (a), GTE agrees that
in a GTE Market, GTE will not xxxx HighwayMaster for any CTS Usage in GTE
Markets if the CTS Usage is more than ninety (90) days old; unless the delay is
caused by HighwayMaster or resulting from any action or omission by
HighwayMaster's failure to provide information on installations, activations,
and deactivations in a timely manner. For example, if CTS Usage in a GTE Market
is a call record generated on May 31, 1998, GTE must xxxx HighwayMaster for that
call prior to August 30, 1998.
(c) With respect to the cellular usage records and the charges
therefore in Non-GTE markets ("Non-GTE Market Charges"), GTE will include such
Non-GTE Market Charges in an invoice to HighwayMaster no later than forty-five
(45) days after receipt of such Non-GTE Market Charges by GTE. HighwayMaster
acknowledges that some of the Non-GTE Market Charges may be more than forty-five
(45) days old when HighwayMaster receives them in an invoice because GTE does
not control when a Non-GTE Carrier submits its records, and HighwayMaster shall
still pay such Non-GTE Market Charges if GTE has sent such Non-GTE Market
Charges no later than forty-five (45) days after receipt of such charges by GTE.
(d) GTE agrees that as of September 16, 1998, HighwayMaster
has paid all amounts due under the Service Agreement to GTE other than CTS Usage
in Non-GTE Markets that has not passed through the billing process, and GTE
shall not xxxx HighwayMaster for any CTS Usage in GTE Markets prior to September
16, 1998. GTE has loaded the NPA/NXXs into its billing system, and HighwayMaster
is not required to send the weekly customer database file to the extent only the
NPA/NXXs defined herein are used by HighwayMaster.
3.5 PAYMENT OF CARRIERS. On behalf of HighwayMaster, GTE agrees to pay
any amounts due Carriers by HighwayMaster for use of Carrier's CTS; provided,
however, that HighwayMaster will reimburse GTE for all amounts paid to any
Carrier ("Carrier Airtime Reimbursement") hereunder even if HighwayMaster has
requested credits from a Carrier or disputes the charges in any manner; provided
that GTE has invoiced HighwayMaster for the Non-GTE Market Charges as set forth
in 3.4(c) above. HighwayMaster hereby acknowledges that GTE's obligation to make
any such payments
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-6-
8
is only part of the Services provided to HighwayMaster under this Agreement and
that HighwayMaster is ultimately responsible for any payments owed to Carriers.
HighwayMaster agrees to indemnify and hold harmless GTE from any and all claims,
losses, damages, causes of action, costs (including reasonable attorneys fees)
or expenses incurred by GTE 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; provided that HighwayMaster has the right to appoint counsel and
direct the litigation.
3.6 PROVISION OF CTS.
(a) GTE Markets. In GTE Markets, GTE agrees to provide
HighwayMaster with CTS at the rates set forth in Section 9; provided, however,
that HighwayMaster must maintain the Minimum Roaming Requirement and use such
CTS solely with the HighwayMaster System. To the extent a GTE Market is
divested, sold or otherwise transferred ("Divested Market"), GTE shall use
reasonable efforts to insure that the entity acquiring such Divested Market
continues to provide CTS to HighwayMaster at the rate charged at the time of the
divestiture; provided, however, that GTE shall not guarantee a provision of CTS
at any rate in a Divested Market and HighwayMaster will have the right to obtain
alternative coverage arrangements in such Divested Market. To the extent a GTE
Market loses the required FCC license or other necessary approvals, such GTE
Market shall have no obligation to provide CTS to HighwayMaster.
(b) Non-GTE Markets. GTE has Roaming Addenda under which GTE
provides CTS in Non-GTE Markets to HighwayMaster under this Agreement. The
Parties acknowledge and agree that the majority of these Roaming Addenda are
currently on a month-to-month basis or expired, and that GTE will not take any
action to renew, maintain or continue such Roaming Addenda. As part of the
transition of the Services to a new Service Provider, either HighwayMaster or
its new Service Provider will obtain Roaming Addenda for the provision of CTS to
HighwayMaster. To the extent any Carrier terminates its Roaming Addenda, GTE
shall notify HighwayMaster, but GTE will have no further obligation to provide
service in the terminated CGSA. Subject to the above, GTE will continue to
execute new Roaming Addenda for CGSAs that are currently not providing CTS for
use with the HighwayMaster System to the extent the Roaming Addenda are in the
form attached hereto as Exhibit B and the term of such Roaming Addenda is
month-to-month. Upon the earlier of (i) transition to a new Service Provider or
(ii) the expiration or termination of this Agreement, GTE will terminate all of
the existing Roaming Addenda.
(c) Restrictions on CTS. With respect to the restrictions
under the Roaming Addenda, whether a GTE Market or a Non-GTE Market, GTE shall
inform the Carrier that HighwayMaster requires restricted 1-800 dialing to its
complex and the use of an authorized security algorithm ("SA") or modem to modem
validation process ("MVM"); provided, however, that HighwayMaster acknowledges
and agrees that it will be solely responsible for any amounts owed for CTS Usage
or any other costs incurred in Non-GTE Markets where the Carrier does not
provide or install such call restriction. To the extent GTE has the technical
ability to implement such call restriction ("Call Restriction") in a GTE Market
with no cost to itself, GTE shall have thirty (30) days from
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-7-
9
the date it commences providing CTS to HighwayMaster to implement the call
restriction in a GTE Market. If GTE fails to implement such call restriction,
GTE shall not charge HighwayMaster for any fraudulent use of CTS caused by GTE's
failure to install the call restriction in a GTE Market. To the extent any
equipment, software or modification is required to provide the requested call
restriction in any CGSA, the Carrier, at its option, may agree to install such
equipment, software or modification but any cost associated therewith shall be
borne by HighwayMaster at its option. HighwayMaster agrees to maintain its
current security and fraud prevention systems and validation procedures in place
and active, and to the extent its ceases any such security protections,
HighwayMaster will be liable for fraudulent CTS Usage. The Parties agree that
the HighwayMaster Systems may be permitted to dial 911 emergency calls, but
HighwayMaster acknowledges that neither GTE nor the GTE Markets provide or
control the provision of 911 emergency services in any CGSAs.
3.7 PRIMARY POINT OF CONTACT. GTE and HighwayMaster shall each identify
in writing, subject to substitution at any time, a primary point of contact to
coordinate activations, to identify existing problems with the provision of the
Services by GTE and billing (the "Contact"). The Parties agree that the Contact
will have adequate technical knowledge and understanding of the mutual
obligations hereunder and will be available on a regular basis Monday through
Friday from 8:00 a.m. to 5:00 p.m.
eastern standard time.
3.8 ACTIVATIONS/IDENTIFICATION CHANGES. HighwayMaster is no longer
required to provide the weekly customer database file to GTE that shows the
NPA/NXXs activated; provided, however, that HighwayMaster agrees to verify which
NPA/NXXs are active within five (5) business days of a written request from GTE.
Further, GTE shall have full access to the Database to confirm any status of any
of the NPA/NXXs. HighwayMaster acknowledges and agrees that it can obtain this
information from GTE TSI. As stated in Section 3.10, HighwayMaster will be
permitted to use Visibility Services for the Term of this Agreement to conduct
activations and deactivations.
3.9 CHARM REPORTS. Upon the written request of HighwayMaster, GTE will
provide HighwayMaster with historical CHARM reports for the NPA/NXXs each month
on or about the same date as receipt of an Invoice.
3.10 DATABASE. The NPA/NXXs shall be maintained in a designated
numbering system compatible with GTE Telecommunications Systems Incorporated
("GTE TSI") for purposes of validation. Such NPA/NXXs shall be stored and
maintained in a validation database at GTE TSI (the "Database") at the direction
of GTE. HighwayMaster acknowledges and agrees that GTE has the right to contact
GTE TSI and direct the Database, subject to the notice requirements in this
section. Subject to Section 12.4 (iv), HighwayMaster and GTE shall have access
to the Database at all times during the Term of this Agreement and for a
reasonable period after expiration or termination of this Agreement; provided,
however that HighwayMaster acknowledges and agrees that it has no right to make
changes or request GTE TSI to make changes to the Database without obtaining
prior written consent from GTE to make changes to the Database. Notwithstanding
the above, for the Term of this Agreement, GTE will continue to permit
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-8-
10
HighwayMaster access to the Database through Visibility Services solely for the
purposes of (i) viewing the NPA/NXXs used by HighwayMaster and (ii) activating
and deactivating such NPA/NXXs. HighwayMaster acknowledges and agrees that it
may not make any other changes or modifications in, or to, the Database without
the prior written consent of GTE. To the extent HighwayMaster requests a
modification to the Database, GTE, in its sole discretion, will determine if the
requested modification is acceptable and such determination will be made within
two (2) business days of the request; provided that HighwayMaster has provided
the request in writing and indicated in detail the reason for such request. To
the extent GTE intends to make any changes to the Database that would affect the
calling capability of the Numbers used by HighwayMaster, GTE will notify
HighwayMaster two (2) days prior to making any such changes. To the extent
HighwayMaster reasonably believes such proposed changes will adversely affect
HighwayMaster or cause Fraudulent Usage, HighwayMaster must notify GTE in
writing within twenty-four (24) hours of receipt of notice of any proposed
changes with an explanation of the issues. To the extent GTE receives such a
notice from HighwayMaster, the Parties agree to discuss the proposed changes,
and GTE will determine in its reasonable discretion whether or not any changes
will be made to the Database.
SECTION 4
CREDITS
4.1 CREDITS.
(a) Existing Credits. As of the date of this Agreement the
Parties acknowledge and agree that the status of the credits sought by GTE on
the behalf of HighwayMaster from Carriers for the period October 15, 1996
through the settlement period ending December 15, 1998 is as set forth in
Exhibit C to this Agreement ("Existing Credits"). With respect to the Existing
Credits and any other credits currently requested by HighwayMaster or that may
be requested by HighwayMaster hereunder, GTE and HighwayMaster agree as follows:
(i) Post January 15, 1999 Credits. Except for the credit
balance existing with Xxxx Atlantic Mobile Systems
("BAMS Account") which is addressed in subsection (iii)
of this provision, for all credits that have previously
been requested by HighwayMaster from January 15, 1999
through April 15, 1999 from the Carriers ("Post January
15 Credits"), HighwayMaster will take full
responsibility for any collection of such credits and
GTE shall not be responsible for the collection of any
such Post January 15 Credits. GTE will transfer its
files to HighwayMaster to pursue these credits, but GTE
will maintain a copy of such files for its records.
With respect to the Post January 15 Credits, no
litigation or Cibernet dispute resolution process will
be permitted or pursued by either Party.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-9-
11
(ii) Pre January 15, 1999 Credits. For all credits that
have been requested by HighwayMaster before January
15, 1999, HighwayMaster agrees and acknowledges that
it has no right to collect, attempt to collect or
make any claim to such credits from GTE or any other
Carrier. GTE has the right to close all issues and
the books and records with respect to such credits
and to write off such credits in the records of GTE.
Further, GTE has the right to notify any and all
Carriers that such Pre January 15, 1999 credits are
null and void by the agreement of GTE of
HighwayMaster.
(iii) BAMS Account. [TEXT HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
Such efforts by HighwayMaster to collect on the BAMS
Account will be subject to the Collection Expiration
Date set forth in subsection (c).
(iv) Other Credits. With respect to any other credits or
adjustments requested by, paid to or due
HighwayMaster prior to execution of the Agreement,
HighwayMaster acknowledges and agrees that there are
no other issues, claims or credits due HighwayMaster.
(b) Post Execution Credit Process. For all credits requested
by HighwayMaster after the execution of this Agreement for any
period after January 15, 1999 ("Post Execution Credits"), the
process will be as follows:
(i) Credit Requests. HighwayMaster will provide GTE with
a written summary of the Post Execution Credit
requests for each Carrier with the supporting call
detail records in a format acceptable to both
Parties, but at a minimum capable of transmission on
a form of electronic media in addition to the written
summary clearly designating its requested Post
Execution Credits by Carrier and the reason for each
credit within thirty (30) days of receipt of a Tape
from GTE;
(ii) Process. GTE will take the provided Post Execution
Credit requests from HighwayMaster and will draft the
first request (the "First Request") for such credits
to a Carrier within fourteen (14) business days of
receipt of the detailed credit requests from
HighwayMaster. GTE will base its First Request on the
information and data provided by HighwayMaster, and
HighwayMaster is solely responsible and liable for
the accuracy, validity and timeliness of any such
information or data. The First Request will be sent
to the Carrier with a duplicate to HighwayMaster.
Upon receipt of the First Request by HighwayMaster,
HighwayMaster will have full responsibility for the
collection of any credit requested and GTE will have
no
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-10-
12
responsibility or liability in connection therewith;
provided, however, that HighwayMaster will have no
right to xxx or initiate a CIBERNET dispute
resolution process with a Carrier without the prior
written consent of GTE. GTE will only provide this
consent if in GTE's reasonable discretion
HighwayMaster's claims for credits are valid,
HighwayMaster has adequate documentation to prove its
claim for credits and the Carrier has wrongfully
rejected the request for such credits. GTE shall
provide HighwayMaster with its decision on whether to
permit a CIBERNET dispute within five (5) business
days of a request to GTE by HighwayMaster to commence
a CIBERNET dispute. HighwayMaster will be responsible
for all costs and expenses associated with this
credit process except for GTE's expenses in
connection with its duties for the First Request.
(iii) Liability. HighwayMaster acknowledges and agrees that
GTE shall have no obligation to attempt collection
and no liability whatsoever if HighwayMaster is
unable to collect any credits from Non-GTE Carriers
if GTE has complied with its obligation to send the
First Request. Further, after the First Request, GTE
shall have no obligation to track, monitor, process,
or maintain records with respect to any credits or
payments in connection therewith.
(c) Expiration Date for Collection Efforts. Notwithstanding anything to
the contrary in this Agreement, with respect to the Post January 15 Credits, the
Post Execution Credits and any other credits under the GTE BID or Roaming
Addenda ("GTE Credit Claims"), [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.] As of the Collection Expiration Date, HighwayMaster acknowledges and
agrees that any rights it may have in the GTE Credit Claims shall cease and be
null and void. GTE will have the right to close all issues and the books and
records for such GTE Credit Claims and to write off all such amounts in its
records. Further, GTE shall have the right to notify any and all Carriers that
such GTE Credit Claims are null and void by the agreement of GTE and
HighwayMaster. GTE will send HighwayMaster a copy of the notice sent to
Carriers.
SECTION 5
HIGHWAYMASTER OBLIGATIONS
In addition to the other covenants, terms and conditions set forth in
this Agreement, HighwayMaster hereby accepts and agrees to perform the
obligations and abide by the responsibilities set forth in this Section 4.
5.1 HIGHWAYMASTER'S USE OF SERVICES. HighwayMaster agrees to use the
Services and CTS only in connection with the use, sale, distribution or
operation of a HighwayMaster System with the HighwayMaster Core Functionality.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-11-
13
5.2 MINIMUM VOLUME. HighwayMaster must at all time during this
Agreement have a [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.] (the
"Minimum Volume") equipped with an operational and in use HighwayMaster System.
To the extent HighwayMaster does not meet and maintain the Minimum Volume at any
time during this Agreement, GTE shall have the right to terminate this Agreement
with one hundred twenty (120) days prior written notice to HighwayMaster.
5.3 CTS RATES AND ROAMING RATES ACKNOWLEDGMENTS. HighwayMaster hereby
acknowledges that GTE is not authorized and cannot establish Roaming Rates for
any Non-GTE Market. HighwayMaster acknowledges and agrees that it shall pay GTE
an amount including, but not limited to, the full amount of all Roaming Rates as
established and charged by each Carrier for CTS used in such Carrier's CGSA. In
the event a Carrier should increase any roamer charges or initiate new rates for
other uses of its CTS such as Data CTS, status coding or *19 validation
transactions, GTE shall xxxx HighwayMaster for such increases or new rates and
HighwayMaster shall be obligated to reimburse GTE for all such increases and new
charges in full. Nothing herein shall be construed as requiring GTE to offset
any difference between the Roaming Rates charged by a Carrier in a particular
CGSA and the rate requested by HighwayMaster. HighwayMaster further acknowledges
that the current Roaming Addenda between Non-GTE Carriers and GTE is subject to
termination. To the extent any of such Roaming Rate agreements are terminated,
GTE is not obligated to provide CTS or the Services in the CGSA(s) governed by
such terminated Roaming Addenda and GTE shall have no obligation to
HighwayMaster for any damages, losses or other effects of such termination.
5.4 PROTECTION OF CELLULAR USAGE. [TEXT HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE SEC.] To the extent HighwayMaster breaches this provision,
HighwayMaster will be responsible for any fraudulent use of CTS.
5.5 HIGHWAYMASTER SYSTEM. HighwayMaster agrees to maintain and operate
the HighwayMaster System or any related equipment, software, hardware or other
technology used in connection therewith in such a manner so that GTE is able to
provide and perform the Services hereunder by the method used by GTE to provide
such Services as of the date of this Agreement.
5.6 TRANSLATION OF MESSAGES. HighwayMaster will be responsible for any
translations of messages or data or other connections transmitted by the use of
CTS with the HighwayMaster System.
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 operate the HighwayMaster System or perform under this
Agreement, HighwayMaster is solely responsible for obtaining such approvals,
licenses or certifications. HighwayMaster agrees to indemnify and hold harmless
GTE from any and all claims, losses, damages, causes of action, costs (including
reasonable attorneys fees)
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-12-
14
or expenses incurred by GTE as a result of any claim or action brought by a
third party and arising from the HighwayMaster's failure to obtain any required
licenses, approvals or other certifications.
5.8 FRAUDULENT CTS USAGE. HighwayMaster acknowledges and agrees that it
shall be solely responsible and shall pay GTE for any and all amounts owed for
CTS Usage hereunder, whether such CTS Usage is deemed to be or is fraudulent
including, but not limited to, outbound/inbound calls, unauthorized SA use,
unauthorized MVM use or misuse of the 0-000 Xxxxxxx unless such fraudulent use
is the result of GTE's failure to implement the Call Restriction mechanism as
set forth in Section 3.6(c). GTE and HighwayMaster agree to cooperate with each
other in identifying and preventing any fraudulent use of the HighwayMaster
Systems; provided, however, that GTE shall have no financial obligation
resulting from such assistance and shall not be required to implement or install
any technology, whether patented or not, to prevent such fraud. To the extent
HighwayMaster notifies GTE that a particular MIN/ESN needs to be deactivated due
to fraud or any other reason, GTE will deactivate such MIN/ESN within
twenty-four (24) hours. To the extent GTE discovers or reasonably believes that
it has discovered fraud, GTE will have the right to deactivate any effected
NPA/NXXS within 24 hours after notifying HighwayMaster in writing of such fraud
and its intention to disconnect the NPA/NXXs. To the extent HighwayMaster
instructs GTE not to deactivate the NPA/NXXs within the twenty-four (24) hours
of receipt of such notice, GTE will not deactivate the NPA/NXXs and
HighwayMaster will be liable for all charges for usage on such NPA/NXXs even if
the usage is fraudulent.
SECTION 6
COVERAGE IN GTE MARKETS
During the Term of this Agreement, HighwayMaster agrees that its
HighwayMaster Systems will be programmed to use only CTS provided by a GTE
Affiliate, subsidiary or related GTE entity ("GTE CTS") in all GTE Markets;
provided, however, that HighwayMaster can enter into agreements with Non-GTE
Carriers for secondary CTS coverage ("Secondary Coverage") in GTE Markets, and
HighwayMaster will not be required to add a GTE Market as primary to the extent
it is acquired by GTE after the date of this Agreement. Secondary Coverage shall
mean that a HighwayMaster System can be programmed to use the CTS of a Non-GTE
Carrier in a GTE Market only at times when the GTE CTS in such GTE Market does
not have CTS coverage in a specific area or is experiencing an outage of CTS
coverage for any reason. HighwayMaster covenants and guarantees that the use of
GTE CTS in each GTE Market by HighwayMaster Systems shall never be less than
ninety five percent (95%) during any one month unless GTE does not have the
coverage in a specific GTE Market to meet the 95% requirement. To the extent the
use of GTE CTS does not meet such required percentage, GTE can either (i)
exercise its rights of termination hereunder, (ii) request an adjustment in
compensation for the lost CTS Usage or (iii) require that HighwayMaster
terminate the secondary coverage as permissible under its agreements with
Non-GTE Carriers.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-13-
15
SECTION 7
OWNERSHIP OF INTELLECTUAL PROPERTY
7.1 NO LICENSE OF INTELLECTUAL PROPERTY.
(a) Nothing herein shall be construed to grant HighwayMaster
any license, express or implied, under any patents, copyrights, or trademarks of
GTE or any of its Affiliates or any improvements, modifications or improvements
thereto, except as may be necessary for HighwayMaster's performance of its
obligations under this Agreement and its Client's use of Services provided
pursuant to this Agreement, and then only for the term of this Agreement. GTE
agrees, however, to indemnify and hold harmless HighwayMaster from any and all
claims, losses, damages, causes of action, costs (including reasonable attorneys
fees) or expenses incurred by HighwayMaster as a result of any claim or action
brought by a third party arising out of or resulting from the use of any
software or hardware provided by GTE to HighwayMaster or used by GTE in
connection with the Services provided pursuant to this Agreement. This indemnity
shall not extend to any use of such software or hardware other than when used in
connection with the Services under this Agreement; modifications to such
software or hardware made by or for HighwayMaster; combinations of such Software
and/or hardware with other software, hardware or functionality not provided by
GTE; or compliance with HighwayMaster provided specifications. The foregoing
indemnity shall not extend to any technical assistance given by GTE in the
course of performing this Agreement because this Agreement does not encompass or
contemplate such technical assistance.
(b) Nothing herein shall be construed to grant GTE any
license, express or implied, under any patents, copyrights, or trademarks of
HighwayMaster or any of its Affiliates or any improvements, modifications or
improvements thereto, except as may be necessary for GTE's performance of its
obligations under this Agreement, and then only for the term of this Agreement.
HighwayMaster agrees, however, to indemnify and hold harmless GTE from any and
all claims, losses, damages, causes of action, costs (including reasonable
attorneys fees) or expenses incurred by GTE as a result of any claim or action
brought by a third party arising out of or resulting from the use of any
software or hardware provided by HighwayMaster to GTE or used by HighwayMaster
or Clients in connection with this Agreement. This indemnity shall not extend
to: any use of such software or hardware other than when used in connection with
the Services under this Agreement; modifications to such software or hardware
made by or for GTE; combinations of such software and/or hardware with other
software, hardware or functionality not provided by HighwayMaster; or compliance
with GTE provided specifications. The foregoing indemnity further shall not
extend to any technical assistance given by HighwayMaster or Clients in the
course of performing this Agreement because the Agreement does not encompass or
contemplate such technical assistance.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-14-
16
7.2 MARKS. Neither Party shall have the right to use the other Party's
tradenames, service marks, or other protected marks without the prior written
consent of the other Party.
7.3 NO TRANSFER OF OWNERSHIP. Nothing in this Agreement shall be
construed as transferring ownership of or rights in any property, tangible or
intangible, including without limitation intellectual property. Subject to the
license rights set forth in Sections 7.1(a) and 7.1(b), nothing in this
Agreement shall be construed as transferring license rights in any property,
tangible or intangible, including without limitation intellectual property.
SECTION 8
CONFIDENTIALITY
8.1 HIGHWAYMASTER INFORMATION.
(a) Use. Except and to the extent set forth in this Agreement,
nothing herein shall constitute a grant of license to GTE of HighwayMaster
Information. GTE may only use the HighwayMaster Information to the extent set
forth herein or as required to perform its obligations under this Agreement,
unless GTE obtains prior written consent from HighwayMaster to use the
HighwayMaster Information for another purpose. GTE may not disclose the
HighwayMaster Information to any third party (other than to contractors
performing services for GTE, provided such contractors enter into written
agreements with GTE restricting further use and disclosure of HighwayMaster
Information) without the prior written consent of HighwayMaster. If GTE receives
or is served with any order, subpoena, demand or other request from any
governmental agency, court or other legal forum to produce HighwayMaster
Information ("Request for Production"), GTE will provide HighwayMaster with
prompt notice of such Request for Production so that HighwayMaster, at its
expense, may seek a protective order or such other remedy to prevent production
of the HighwayMaster Information. If GTE is ultimately compelled, by a court or
other legal forum, which has authority, to comply with the Request for
Production, GTE will not be in violation of this Section. Upon termination or
expiration of this Agreement or, with respect to any HighwayMaster Information,
on such earlier date that GTE in its opinion, shall no longer require the
HighwayMaster Information to provide the Services hereunder, GTE will , at
HighwayMaster's request, either erase the HighwayMaster Information from any
files maintained by GTE or return the HighwayMaster Information to
HighwayMaster. GTE agrees to protect and safeguard the confidentiality of the
HighwayMaster Information to the same degree and extent as GTE protects and
safeguards its own confidential information.
(b) Exclusions to Obligations Relating to HighwayMaster
Information. Notwithstanding Section 8.1(a) above, HighwayMaster Information
shall not include, and this Agreement shall impose no obligation on GTE to
protect, not disclose or not use that portion of any HighwayMaster Information
that:
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-15-
17
(1) Prior to its disclosure by HighwayMaster, is
lawfully and rightfully known by or available to GTE or its Affiliates
(from other than HighwayMaster or its Affiliates), without restriction
on use or disclosure;
(2) Through no breach of this Agreement or fault on
the part of GTE, is or hereafter becomes part of the public domain
(i.e., without restriction on use or disclosure);
(3) Is developed by or for GTE independently from and
without access to HighwayMaster Information;
(4) Is lawfully received by GTE from a third party
without restriction on use or disclosure and without breach of this
Agreement or any other agreement, or breach of any fiduciary obligation
or obligation of confidentiality; or
(5) Is approved in writing by HighwayMaster for
disclosure to third parties or for other uses.
8.2 GTE INFORMATION.
(a) Use. Except and to the extent set forth in this Agreement, nothing
herein shall constitute a grant of license to HighwayMaster of GTE Information.
HighwayMaster may only use the GTE Information to the extent set forth herein or
as required to perform its obligations under this Agreement, unless
HighwayMaster obtains prior written consent from GTE to use the GTE Information
for another purpose. HighwayMaster may not disclose the GTE Information to any
third party (other than to contractors performing services for HighwayMaster,
provided such contractors enter into written agreements with HighwayMaster
restricting further use and disclosure of GTE Information) without the prior
written consent of GTE. If HighwayMaster receives or is served with any order,
subpoena, demand or other request from any governmental agency, court or other
legal forum to produce GTE Information ("Request for Production"), HighwayMaster
will provide GTE with prompt notice of such "Request for Production" so that
GTE, at its expense, may seek a protective order or such other remedy to prevent
production of the GTE Information. If HighwayMaster is ultimately compelled, by
a court or other legal forum, which has authority, to comply with the Request
for Production, HighwayMaster will not be in violation of this Section. Upon
termination or expiration of this Agreement or, with respect to any GTE
Information, on such earlier date that HighwayMaster in its opinion, shall no
longer require the GTE Information to perform its obligations under this
Agreement, HighwayMaster will, at GTE's request, either erase the GTE
Information from any files maintained by HighwayMaster or return the GTE
Information to GTE. HighwayMaster agrees to protect and safeguard the
confidentiality of the GTE Information to the same degree and extent as
HighwayMaster protects and safeguards its own confidential information.
(b) Exclusions to Obligations Relating to GTE Information.
Notwithstanding Section 8.2(a) above, GTE Information shall not include, and
this
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-16-
18
Agreement shall impose no obligation on HighwayMaster to protect, not disclose
or not use that portion of any GTE Information that:
(1) Prior to its disclosure by GTE, is lawfully and
rightfully known by or available to HighwayMaster or its Affiliates
(from other than GTE or its Affiliates), without restriction on use or
disclosure;
(2) Through no breach of this Agreement or fault on
the part of HighwayMaster, is or hereafter becomes part of the public
domain (i.e., without restriction on use or disclosure);
(3) Is developed by or for HighwayMaster
independently from and without access to GTE Information;
(4) Is lawfully received by HighwayMaster from a
third party without restriction on use or disclosure and without breach
of this Agreement or any other agreement, or breach of any fiduciary
obligation or obligation of confidentiality; or
(5) Is approved in writing by GTE for disclosure to
third parties or for other uses.
8.3 EXCEPTIONS. The Parties acknowledge and agree that the above
Confidentiality provisions do not limit either Party from disclosing this
Agreement to GTE TSI or obtaining information from GTE TSI regarding the
Services or Numbers. The parties further acknowledge that the GTE Information
and the HighwayMaster Information may be disclosed by the receiving party to (i)
the receiving party's attorneys, accountants, and financial advisors, and (ii) a
prospective purchaser or merger partner, provided such recipients agree in
writing not to further use or disclose the GTE Information/HighwayMaster
Information consistent with the provisions of this Agreement.
SECTION 9
COMPENSATION AND PAYMENT PROCESS
9.1 COMPENSATION.
a) Monthly Compensation. In exchange for the Services provided
hereunder HighwayMaster shall pay GTE the amounts set forth in this section
within thirty (30) days of receipt of an Invoice for the Services. Such
compensation is effective as of the date of execution of this Agreement and will
commence after receipt by HighwayMaster of the first Invoice from GTE:
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
9.2 PROCESS FOR COMPENSATION. HighwayMaster will compensate GTE for the
Services in accordance with the terms, rates and charges set forth herein. GTE
will
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-17-
19
prepare and send to HighwayMaster monthly statements of the amounts owed by
HighwayMaster to GTE including without limitation the charges set forth in the
Invoice referenced in Section 3.4. HighwayMaster will pay GTE within net thirty
(30) days following receipt of such Invoice ("Due Date"). Receipt shall be
deemed to have occurred three (3) days after such Invoice has been deposited in
the U.S. Mail. If HighwayMaster fails to pay GTE by the Due Date, any and all
outstanding amounts due GTE shall accrue interest at the rate of one percent
(1.0 %) per month or the maximum amount of interest allowed by law, whichever is
less.
9.3 FINANCIAL PROTECTIONS. To the extent the amounts owed to GTE by
HighwayMaster in any given month exceed a total of Five Hundred Thousand Dollars
($500,000), HighwayMaster, upon the written request of GTE, must establish an
escrow account with terms and conditions satisfactory to GTE or provide GTE with
a performance bond or an irrevocable letter of credit from a nationally
recognized financial institution, to be determined by GTE, with GTE as the sole
beneficiary in an amount equal to no less than Three Million Dollars
($3,000,000) (the "Financial Protection"). Such Financial Protection must be
provided within thirty (30) days of the request by GTE or GTE will have the
right to terminate the Agreement by written notice to HighwayMaster. If GTE
exercises this right of termination, HighwayMaster will have no rights to a
transition period if any Material Default exists or is continuing at the time
the Financial Protection is not provided by HighwayMaster in accordance
herewith. Such termination to be effective immediately upon receipt of the
written notice. GTE has the right to require an increase of the amount of the
bond or letter of credit at any time during the Term of this Agreement to the
extent HighwayMaster's monthly obligations to GTE increase significantly as
determined by GTE.
9.4 DISPUTES REGARDING COMPENSATION. To the extent HighwayMaster has a
legitimate dispute regarding amounts owed to GTE (the "Disputed Amount"),
HighwayMaster agrees that it shall continue to pay GTE all amounts, whether
disputed or otherwise by the Due Date. HighwayMaster shall simultaneously with
payment of any Disputed Amount notify GTE of the dispute and then shall rely
upon the Dispute Resolution Provisions in Sections 13.18 and 13.19 of this
Agreement. HighwayMaster must notify GTE in writing of any dispute on or with an
Invoice within one hundred twenty (120) days after HighwayMaster has received
such Invoice. To the extent HighwayMaster prevails in a dispute regarding
amounts owed to GTE and GTE must reimburse any amounts to HighwayMaster, GTE
shall pay a rate of interest equal to one percent (1.0 %) per month or the
maximum amount of interest allowed by law, whichever is less.
9.5 [TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-18-
20
SECTION 10
TERM OF AGREEMENT; RENEWAL OPTION
10.1 TERM. The term of this Agreement shall be from the date of
execution until September 30, 1999 (the "Term"). HighwayMaster acknowledges and
agrees that it has no right to renew this Agreement under any circumstances, and
that it is currently in the process of finding a new Service Provider.
SECTION 11
TERMINATION
11.1 TERMINATION FOR CAUSE. Subject to the other rights of termination
hereunder, in the event of a Material Default by either Party under this
Agreement, the nondefaulting Party may terminate this Agreement by giving notice
of such termination to the other Party to this Agreement. To the extent the
defaulting Party cures the Material Default within the thirty (30) day cure
period provided for in the definition of Material Default, this Agreement cannot
be terminated unless a subsequent notice of Material Default is provided
hereunder, which notice of termination shall specify a date no earlier than
thirty (30) days after the date such notice is given for termination.
11.2 TERMINATION FOR NONPAYMENT. In the event that HighwayMaster fails
to pay GTE any amounts owed for the Services by the Due Date and HighwayMaster
fails to fully cure such payment default within thirty (30) days of such payment
default, then GTE may terminate this Agreement by giving notice of such
termination to HighwayMaster, which notice of termination shall specify a date
no earlier than ten (10) days after the date such notice is given for such
termination. To the extent HighwayMaster cures the payment default in full prior
to expiration of the ten (10) day notice period, GTE will not terminate this
Agreement for the payment default.
11.3 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 Agent 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 Agent's
business or assets, GTE shall have the right to terminate this Agreement
effective upon notification of such termination to HighwayMaster.
11.4 TERMINATION FOR FAILURE TO MAINTAIN MINIMUM ROAMING PERCENTAGE. To
the extent HighwayMaster fails to maintain the Minimum Roaming Requirement, GTE,
in its sole discretion, may elect to (i) terminate CTS to any ESN/MIN wherein
the CTS Usage does not meet the Minimum Roaming Requirement or (ii) adjust the
amount of compensation to be paid by HighwayMaster for the ESN/MIN provided that
the amount of adjustments or terminations shall be no more than necessary to
bring HighwayMaster into compliance with the Minimum Roaming Requirement. To the
extent HighwayMaster does not have the documentation to prove that it is meeting
the Minimum Roaming Requirement either in the aggregate or on an ESN/MIN level,
GTE
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-19-
21
may terminate this Agreement with thirty (30) days prior written notice.
HighwayMaster will have the right to cure such a default within such thirty (30)
day period.
11.5 TERMINATION BASED ON LEGAL OR REGULATORY RULINGS. To the extent
any final nonappealable order or ruling is issued by a court, agency, commission
or other forum that has jurisdiction over either GTE or HighwayMaster, that
rules that any of the terms of this Agreement are unenforceable, require
modification or are against governing statutes, regulations, codes or law, GTE
shall have the right to terminate this Agreement with thirty (30) days prior
written notice. Further, GTE will not be liable to HighwayMaster for any default
or nonperformance under this Agreement to the extent such nonperformance or
default is a result of adherence or compliance with any regulatory, legal or
agency regulation, requirement, order or ruling.
11.6 TERMINATION FOR DISCONTINUED BUSINESS. To the extent GTE ceases to
operate all or substantially all of its business operations, GTE shall not be
obligated to provide the Services under this Agreement.
SECTION 12
TRANSITION OBLIGATIONS
12.1 TRANSITION TO NEW SERVICE PROVIDER. HighwayMaster and GTE both
desire to transition the Services provided hereunder to a new Service Provider.
HighwayMaster agrees to use its best efforts to find a new Service Provider by
no later than June 30, 1999. HighwayMaster acknowledges and agrees that the
Service Provider must be a Carrier as defined in this Agreement or GTE will not
proceed with this Section 12 of this Agreement. Upon designation of the new
Service Provider, HighwayMaster will transition to such Service Provider by no
later than September 30, 1999. Upon written identification of a new Service
Provider that has entered into an agreement with HighwayMaster to provide the
Services, GTE and HighwayMaster will commence with the transition of the
Services to the new Service Provider. It is the sole responsibility of
HighwayMaster to find a new Service Provider and enter into an agreement with
such Service Provider. To the extent HighwayMaster fails to find a new Service
Provider, HighwayMaster shall have no right to renew this Agreement and GTE
shall cease all Services hereunder as of September 30, 1999.
12.2 TRANSITION OF ROAMING ADDENDA. Subsequent to the execution of this
Agreement, HighwayMaster is solely responsible for the negotiation and execution
of any new Roaming Addenda for use with its new Service Provider. GTE shall not
be obligated to implement or use any such Roaming Addenda.
12.3 COOPERATION. HighwayMaster agrees to cooperate with GTE in the
transition and either HighwayMaster or the new Service Provider will provide any
information reasonably requested by GTE to perform the transition to a new
Service Provider. GTE agrees to cooperate with HighwayMaster in the transition
and to provide any information reasonably requested by HighwayMaster to perform
the transition to a new Service Provider. HighwayMaster will give GTE at least
sixty (60) days' written notice of its planned transition date, and will
cooperate with GTE in the creation of a
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-20-
22
written transition plan to be issued jointly by GTE and HighwayMaster and
provided to GTE TSI and the new Service Provider. HighwayMaster further
authorizes GTE to discuss the transition with the new Service Provider and GTE
TSI as GTE may reasonably require.
12.4 TRANSITION OBLIGATIONS. Upon HighwayMaster executing an agreement
with a new Service Provider to provide the Services and such Service Provider
being a Carrier as defined herein, GTE will assist in the transition of the
Services by taking the following actions:
(i) GTE will assign the NPA/NXXs to HighwayMaster's new
Service Provider and will announce such assignment as
appropriate in the industry;
(ii) GTE will assign the current BID, 30445, to
HighwayMaster's new Service Provider and will
announce such assignment to the industry. Upon this
assignment GTE shall have no further liability for
any activity under such BID and GTE will inform the
industry of the effective date of the assignment
prior to such assignment;
(iii) GTE will enter into a wireless service agreement with
the new Service Provider in the form attached hereto
as Exhibit D. To the extent the new Service Provider
refuses to enter into such an agreement GTE will not
be obligated to enter into an agreement with the new
Service Provider to continue any wireless service to
HighwayMaster; and
(iv) GTE will no longer have access or control of the
Database referenced in Section 3.10 above, except
with respect to wireless service provided over GTE's
or one of its affiliates' networks or facilities
("GTE Facilities") or as otherwise negotiated between
GTE and any new Service Provider. GTE acknowledges
that HighwayMaster is not a party to any agreement in
the form of Exhibit D and cannot agree to its terms
on behalf of the new Service Provider. GTE is not
obligated to enter into any agreement with a new
Service Provider other than the one set forth in
Exhibit D.
12.5 ELECTRONIC RETURN PROCESS. To the extent an electronic return
process is developed for the purpose of electronically identifying and returning
erroneous CTS records such as rate errors to a Carrier, GTE will review such
process once it is completed, but GTE is under no obligation to implement such
process.
12.6 TRANSITION PRESS RELEASE. Upon the earlier of (i) expiration of
this Agreement or (ii) transition to a new Service Provider, the Parties will
jointly coordinate a press release; provided, that neither Party may make any
press release using the other Parties' name or logo without the prior written
consent of the other Party.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-21-
23
12.7 TRANSITION DATE. Both Parties will use their best efforts to
transition to the new Service Provider on the sixteenth (16th) day of a calendar
month.
12.8 OPPOSITION. To the extent GTE receives a written opposition to the
transition to a new Service Provider from any Carrier, GTE will inform
HighwayMaster of such opposition.
12.9 EXPENSES; TRANSITION OBLIGATIONS. Except as expressly set forth
herein, GTE shall have no other obligations to assist in the transition.
HighwayMaster shall bear any expenses with its transition.
SECTION 13
MISCELLANEOUS PROVISIONS
13.1 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 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, air conditioning, lack of
capacity on the networks or network outages. Additionally, GTE shall not be
liable to HighwayMaster if changes, alterations or modifications in the
HighwayMaster System, HighwayMaster's facilities, operations, network equipment,
or procedures made in the ordinary course of business render the Services
obsolete or unusable.
13.2 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.
13.3 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 wholly owned affiliates, 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 without the prior written consent of the
other Party, except as required by law, in which
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-22-
24
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.
13.4 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 via Federal
Express or Airborne or (iii) via facsimile. Any such notice will be deemed to be
received upon the earlier of verification of delivery or the fifth (5th) 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
0000 Xxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attn: President
Fax: (000) 000-0000
With a copy to: General Counsel
Fax: (000) 000-0000
If to GTE: GTE Wireless Service Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: AVP - Wholesale Marketing
Fax: (000) 000-0000
With a copy to: Legal Department
Fax: (000) 000-0000
13.5 LEGAL REPRESENTATION. HighwayMaster acknowledges that GTE has
offered no legal advice or counsel to HighwayMaster nor made any representations
to HighwayMaster regarding any matter, including without limitation
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 GTE has not offered HighwayMaster any
legal advice or counsel regarding the subject matter of this Agreement. GTE
acknowledges that HighwayMaster has offered no legal advice or counsel to GTE
nor made any representations to GTE regarding GTE's exemption from the
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 GTE any legal advice or
counsel regarding the subject matter of this Agreement.
13.6 INTERPRETATION; CONSTRUCTION. Headings used in this Agreement are
for convenience only and will not be deemed to be operative text. Terms of
gender will be
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-23-
25
deemed inter-changeable, as will singular and plural terms, in each case unless
the context otherwise requires. This Agreement and the provisions contained
herein shall not be construed or interpreted for or against any Party because
that Party drafted or caused its legal representative to draft any of its
provisions.
13.7 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.
13.8 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 each Party intended to be benefited
by the same.
13.9 WARRANTY DISCLAIMER. GTE'S AND HIGHWAYMASTER'S OBLIGATIONS
HEREUNDER ARE IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED. GTE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED REGARDING THE GOODS, SERVICES OR EQUIPMENT TO BE
PROVIDED HEREIN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
13.10 NO LIABILITY FOR INDIRECT DAMAGES. GTE SHALL NOT BE LIABLE TO
HIGHWAYMASTER, AND HIGHWAYMASTER SHALL NOT BE LIABLE TO GTE, OR ANY THIRD PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL OR PUNITIVE
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 THE PERFORMANCE OF THE DUTIES OR OBLIGATIONS OF
GTE OR HIGHWAYMASTER IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN OR THE
RENDERING OF SERVICES HEREUNDER.
13.11 LIMITATION OF LIABILITY. WITH THE EXCEPTION OF THE INDEMNITIES IN
SECTIONS 3.5 AND 5.7 AND ANY OUTSTANDING AMOUNTS OWED BY HIGHWAYMASTER FOR
SERVICES PROVIDED HEREUNDER, THE LIABILITY OF EITHER PARTY FOR ANY CLAIM
ASSERTED BY THE OTHER PARTY SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL
AMOUNTS PAID BY HIGHWAYMASTER TO GTE, OTHER THAN THE CARRIER AIRTIME
REIMBURSEMENT AMOUNTS, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT GIVING RISE TO THE CLAIM.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-24-
26
13.12 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.
13.13 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.
13.14 AMENDMENTS. This Agreement may not be modified, amended or
supplemented except by an agreement in writing signed by all of the Parties
hereto. GTE shall not accept nor act upon any instructions, directions, and/or
modifications concerning GTE's performance hereunder which would affect the
terms, conditions, and/or pricing of this Agreement unless authorized by
HighwayMaster's representative.
13.15 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, CTS 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 GTE.
13.16 THIRD PARTIES. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any Person 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.
13.17 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.
13.18 DISPUTE RESOLUTION PROCEDURES. Except as provided in Section
13.18(d) below, for all disputes relating to this Agreement, prior to
instituting litigation, in any forum, including, but not limited to, state,
federal, or regulatory proceedings, each Party agrees to the following
procedures:
(a) In the event a Party has a dispute with the other Party
relating to this Agreement, the aggrieved Party shall give the other Party
detailed written notice of any acts, occurrences and/or omissions giving rise to
the dispute. The aggrieved Party, in its sole discretion, may include copies of
documents which it believes support its claim(s).
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-25-
27
(b) Within fifteen (15) days after receipt of notice, the
Party receiving the notice shall tender to the other Party a written response,
including an offer of settlement, if it so desires. Any offer of settlement not
accepted or rejected within fifteen (15) days shall be deemed rejected.
(c) In the event the Parties are unable to settle their
dispute after following the procedures set forth in this Section 13.18, and
fifteen (15) days following the receipt of the response made pursuant to (b)
above (or the lapse of the fifteen (15) day period specified therein in the
event no response is made), the Parties shall submit their dispute to mediation.
Compliance with the procedures on dispute resolution and mediation shall be a
condition precedent to initiating any judicial, quasi-judicial and/or regulatory
or legal proceeding. Any lawsuit filed prior to the exhaustion of the mediation
procedures provided for in this Agreement shall be dismissed, notwithstanding
any later exhaustion of mediation and the subsequent filing of any lawsuit by
the other party. A Party seeking and obtaining dismissal of a lawsuit pursuant
to this provision shall recover all of its costs and attorneys' fees incurred in
obtaining such dismissal.
(d) Notwithstanding Section 13.18 (a) (c) above, if either
Party seeks to obtain a temporary restraining order or preliminary injunction to
prevent the imminent disclosure of HighwayMaster Information or GTE Information,
as the case may be, the dispute resolution provisions of this Section 13.18 will
not apply. However, if the Party seeking the temporary restraining order or
preliminary injunction is unsuccessful, such Party shall be required to pay all
costs and expenses (including reasonable attorney's fees) of the other Party
within thirty (30) days of the denial of the requested relief. To the extent
either Party seeks any relief not provided for by this Section 13.18(d), the
dispute resolution provisions of Section 13.18(a) (c) shall control.
13.19 RULES FOR MEDIATION.
(a) Consent to Mediator. Both Parties shall share equally the
cost of mediation. The Mediator shall act as an advocate for resolution and
shall use his or her best efforts to assist the Parties in reaching a mutually
agreeable settlement. The Parties agree to select the Mediator within three (3)
business days following the procedure set forth in 13.18 above. In the event the
Parties are unable to agree on a Mediator, the matter shall be referred to the
American Arbitration Association for the appointment of a Mediator pursuant to
its Commercial Mediation Rules.
(b) Conditions Precedent to Service as a Mediator. The
Mediator shall not serve as a mediator in any dispute in which he or she has a
financial or personal interest in the result of mediation. Prior to accepting an
appointment, the Mediator shall disclose any circumstance likely to create
presumption of bias or prevent prompt meeting with the Parties. In the event the
Parties disagree as to whether the Mediator shall serve, the Mediator shall not
serve.
(c) Authority of Mediator. The Mediator shall not have the
authority to decide any issue for the Parties, but will attempt to facilitate
voluntary resolution of the dispute by the Parties. The Mediator is authorized
to conduct joint and separate meetings
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-26-
28
with the Parties and to offer suggestions to assist the Parties achieve
settlement. If necessary, the Mediator may also obtain expert advice concerning
technical aspects of the dispute, provided the Parties agree and assume the
expenses of obtaining the advice. Arrangements for obtaining such advice shall
be made by the Mediator or the Parties, as the Mediator shall determine.
(d) Date, Time and Place of Mediation. The Mediator shall fix
the date and the time of each mediation session.
(e) Identification of Matters in Dispute. At least ten (10)
days prior to the first scheduled mediation session, each Party shall provide
the Mediator with a brief memorandum setting forth its position with regard to
the issues that need to be resolved. At the discretion of the Mediator, such
memoranda may be mutually exchanged by the Parties. At the first session, the
Parties will be expected to produce all information reasonably required for the
Mediator to understand the issues presented. The Mediator may require any Party
to supplement such information.
(f) Privacy. Mediation sessions are private. The Parties and
their representatives may attend mediation sessions. Other persons may attend
only with the permission of the Parties and with the consent of the Mediator.
(g) Confidentiality. Confidential information disclosed to a
Mediator by the Parties or by witnesses in the course of the mediation shall not
be divulged by the Mediator. All records, reports or other documents received by
a Mediator while serving in that capacity shall be confidential. The Mediator
shall not be compelled to divulge such records or to testify in regard to the
mediation in any adversary proceeding or judicial forum.
The Parties shall maintain the confidentiality of the
mediation and shall not rely on or introduce as evidence in any arbitral,
judicial or other proceeding:
(i) views expressed or suggestions made by another
Party with respect to a possible settlement of
the dispute;
(ii) admissions made by another Party in the course
of the mediation proceedings;
(iii) proposals made or views expressed by the
Mediator; or
(iv) the fact that another Party had or had not
indicated willingness to accept a proposal for
settlement made by the Mediator.
(h) No Stenographic Record. There shall be no stenographic
record of the mediation process.
(i) Termination of Mediation. The mediation shall be
terminated:
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-27-
29
(i) by the execution of a settlement agreement by
the Parties;
(ii) by a written declaration of the Mediator to the
effect that further efforts at mediation are no
longer worthwhile; or
(iii) by a written declaration of a Party or Parties
to the effect that the mediation proceedings
are terminated, but then only after a good
faith participation in mediation consisting of
at least eight hours of mediation. Written
certification by the mediator that a Party has
not participated in good faith in the mediation
shall prevent termination of the mediation
proceedings.
Any mediation awards resulting from the invocation of this
paragraph shall be governed by the provisions set forth in Sections 13.10 and
13.11.
(j) Duration. Either Party may require that mediation be
completed within forty five (45) days from the submission of the first notice
set forth in 13.18(a) above. In the event substantial potential damages continue
to accrue pending mediation, the mediator shall have the authority to amend all
of the procedures and time periods as may be reasonable to expedite the
procedure.
13.20 INDEPENDENT CONTRACTOR. GTE 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.
13.21 ENTIRE AGREEMENT. This Agreement, together with the 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.
13.22 REMEDIES CUMULATIVE. Subject to the limitations of liability set
forth herein, all rights of termination, cancellation, or other remedies in this
Agreement are cumulative. Use of any remedy shall not preclude any other remedy
in this Agreement.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-28-
30
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the date first above written.
GTE WIRELESS SERVICE CORPORATION HIGHWAYMASTER CORPORATION
By: (x) Xxxxxxx X. XxXxxxxxx By: (x) Xxxx Xxxx
--------------------------------------- ----------------------------
Name: Xxxxxxx X. XxXxxxxxx Name: Xxxx Xxxx
--------------------------------------- ----------------------------
Title: Senior Vice President - Marketing & Title: President & CEO
Sales
--------------------------------------- ----------------------------
Date: April 30, 1999 Date: April 29, 1999
--------------------------------------- ----------------------------
By: (x) Xxxxxxxxx X. XxXxxxxxx
---------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
---------------------------------------
Title: Asst. Secretary
---------------------------------------
Date: April 30, 1999
---------------------------------------
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-29-
31
EXHIBIT A
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
Transition Agreement GTE Proprietary and Confidential
32
[EXHIBIT B]
INTERCARRIER ROAMER SERVICE ADDENDUM
This Addendum to the Intercarrier Roamer Service Agreement ("Roamer
Agreement") between GTE Wireless Incorporated ("GTE") and __________________
("Carrier") as managing agent for the entities set forth in Appendix I attached
hereto and made a part hereof, is made and entered into effective as of
_________, 1999. The provisions set forth in this Addendum are controlling and
shall supersede any conflicting provisions in the Roamer Agreement as they may
relate to the specific provision of Roamer Service to roamers using the
HighwayMaster system ("HMS").
RECITAL
WHEREAS, the undersigned, in conjunction with other cellular providers,
desires to facilitate the provision of cellular roamer service to the long haul
trucking industry and other roamers with similar roaming patterns;
WHEREAS, in recognition of the unique requirements of the long haul
trucking industry, and other similarly situated industries, namely those with
nomadic travel patterns, the parties hereto have agreed to amend their existing
Roamer Agreement in accordance with the provisions set forth herein;
WHEREAS, it is the express intent of the Parties hereto that the
provisions of this Agreement shall be limited as set forth hereunder;
NOW THEREFORE, in consideration of mutual covenants set forth below the
receipt and sufficiency of which are hereby acknowledged, the parties enter into
the Addendum;
ARTICLE I: DESCRIPTION OF SERVICE
The HMS is a mobile communications system utilizing cellular technology
to provide communication and tracking services. The service is available to the
trucking industry and similar industries where the majority of airtime usage
utilizes multiple cellular SID's (System Identifications). The system combines a
patented smart phone voice recognition technology and special provisions from
cellular carriers throughout the United States and Canada.
A key component of the HMS is a "smart phone", which is a cellular
telephone connected to a proprietary software processor placed in each vehicle.
The phone, which utilizes voice recognition technology as a safety feature,
interfaces with a front end processor or PC-based system which resides at the
control dispatch center. As vehicles travel around the country, special
transmissions from the HighwayMaster unit provide tracking information to the
dispatch center showing the location, special information and roamer access
information. The tracking information and call validation is provided by GTE
Telecommunications Services ("TSI") located in Tampa, Florida. TSI processes a
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
33
special signal that is automatically transmitted each time the vehicle enters a
new SID. The cellular network system, in conjunction with the cellular networks
of other cellular carriers, will provide the communications medium over which
tracking will be accomplished.
Only those roamers who engage in frequent multistate/multimarket
travel, wherein during two (2) consecutive months of each quarter in a calendar
year, seventy percent (70%) of airtime usage, including *19 validation, occurs
in multiple SIDs and whose tracking system can perform the restrictive call
delivery and other technical network interfaces described in this Addendum shall
be eligible to receive the roamer rates herein referenced.
ARTICLE II: GTE'S ROLE AS AN ADMINISTRATIVE SERVICE PROVIDER
ESTABLISHMENT OF NPA/NXX
GTE shall be responsible for establishing NPA/NXX combinations created
solely for use by roamers as defined herein. The NPA/NXX's are not dialable from
the Public Switched Telephone Network and can only be successfully called
through the Roamer Access Port of the serving system or via IS-41 Call Delivery
to the extent that is the Carrier's standard configuration. GTE has established
a designated NPA/NXX numbering system in conjunction with TSI for purposes of
validating *19 generated calls. GTE has a separate billing identification
("BID") for all numbers utilized by vehicles hereunder. The BID will be used
nationally to identify vehicles equipped with the HighwayMaster system. GTE will
notify the carriers of the BID and provide all updates of NPA/NXX used for the
purpose of this application. GTE will provide Industry Standard Updates which
shall be listed on GTE's Technical Data Sheets. All assigned numbers will be
stored in a validation database, jointly maintained by TSI and GTE. GTE shall
provide activations, ESN changes and updates to the database. The number block
utilized by vehicles equipped with the HighwayMaster system will be accessed via
the "valid foreign group" of all participating carriers which will allow
vehicles to make 1+800 calls and 911 emergency calls. All calls, except
emergency 911 calls, generated by users of the HighwayMaster system will be
routed to a billing and dispatch platform via a 1-800 number which will require
an authorized personal identification number (PIN) or modem to modem validation
process for completion.
ARTICLE III: COST OF SERVICE
Pursuant to the provisions herein stated, Carrier agrees for the term
of this Addendum to provide roaming service in accordance herewith in those
markets set forth on Appendix I at $_____ per minute. Carrier will not assess a
daily roamer access charge to users described hereunder for system use. It is
acknowledged that the provision of service at the rate set forth herein may be
subject to regulatory approval in various states. Carrier agrees that in those
service areas set forth in Appendix II requiring regulatory approval for the
roaming rate set forth herein, Carrier shall make reasonable good faith efforts
to obtain approval from the appropriate regulatory bodies. In the event
regulatory approval for the rates set forth herein is not obtained, the parties
hereto may elect to
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-2-
34
terminate this Agreement in those service areas or negotiate in good faith to
determine alternative rates. Notwithstanding any provision contained herein to
the contrary, Carrier shall not be required to provide rates to GTE which are
contrary to its overall business objectives and strategies or which are not
approved by the reviewing regulatory body.
ARTICLE IV: BILLING AND SETTLEMENT
GTE shall be liable to Carrier for all cost of services for system
usage at a rate in accordance with Article III of this Addendum. All charges
shall be invoiced by Carrier to GTE as specified in Appendix III of the Roamer
Agreement.
ARTICLE V: CALL RESTRICTION
Carrier agrees that in order to eliminate incidences of fraud as it
relates to the provision of service hereunder in conjunction with the
HighwayMaster system, Carrier shall institute call restrictive dialing. Inbound
and outbound calls in service areas set forth on Appendix II shall be routed via
a 1-800 platform which will require an authorized Personal Identification Number
(PIN) or another modem to modem validation method for call completion. Carrier
acknowledges and agrees that its liability for fraudulent airtime charges as set
forth herein or systems failure is relieved and shall be borne by GTE only if
Carrier has in place the call restrictive mechanism and procedures described
herein; otherwise, Carrier shall be solely liable for fraudulent airtime charges
incurred in areas set forth on Appendix II. Liability for losses, damages,
charges or expenses arising from or out of the fraudulent use of the
HighwayMaster system, including, but not limited to, outbound/inbound calls,
cloned phones, unauthorized PIN use, modem to modem validation and the 1+800
platform resulting from or attributable to Customers of the HighwayMaster system
shall be borne by GTE.
ARTICLE VI: TERM AND TERMINATION
This Agreement shall commence on the date of execution, and shall be
month to month terminated by either party with the provision of ten (10) days
prior written notice.
Notwithstanding any provisions contained herein to the contrary, GTE
may suspend or otherwise terminate this Agreement as it relates to those markets
set forth in Appendix II in the event GTE should terminate its relationship with
HighwayMaster Corporation for the provision of administrative service as
provided therein.
ARTICLE VII: LIMITATIONS OF LIABILITY
Neither Party hereto shall be liable to the other party or any third
party, including affiliate subsidiaries or partnership interest, for indirect,
incidental, consequential, reliance, punitive or special damages, including,
without limitation, damages for lost profits, regardless of the form of action
whether in contract, indemnify, warranty, strict liability or tort arising from
or related to the performance of the duties of either party as set forth herein
or the rendering of services hereunder.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-3-
35
ARTICLE VIII: GTETSI INTERFACE
A key component of the HighwayMaster System application is the ability
of carriers to validate and provide for call delivery through TSI. In order for
this to be implemented the carrier must have a link to TSI or the validation
system of any other clearinghouse service provider. In the event the carrier is
not linked to any of the above services, Carrier understands that its
participation herein would be limited to markets which adhere to the
requirements set forth in this paragraph.
Agreed to by:
GTE WIRELESS INCORPORATED [CARRIER]
By: By:
--------------------------------------- -------------------------------
Name: Name:
--------------------------------------- -------------------------------
Title: Title:
--------------------------------------- -------------------------------
Date: Date:
--------------------------------------- -------------------------------
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
Date:
---------------------------------------
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-4-
36
EXHIBIT C
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
37
[Exhibit D]
ADDENDUM TO THE INTERCARRIER ROAMER SERVICE AGREEMENT
This Addendum ("Addendum") to the Intercarrier Roamer Service Agreement
("Roamer Agreement") between GTE Wireless Incorporated, on behalf of itself and
its wireless affiliates that are a party to the Roamer Agreement ("GTE") and
__________________ ("Carrier") is made as of this ___ day of _____, 1999. To the
extent any of the provisions of this Addendum are contrary to the provisions in
the Roamer Agreement, the provisions in this Addendum shall control with respect
to any usage of wireless roaming service ("Roaming") for the Numbers (as defined
herein) associated with a HighwayMaster System (as defined herein) or used by
HighwayMaster Corporation ("HighwayMaster") or one of its Customers
("Customers"). HighwayMaster is not a party to, nor does this Addendum make them
a party to, GTE's Roamer Agreement with the Carrier. This Addendum supercedes
and replaces any existing Intercarrier Roamer Service Addendum between GTE and
Carrier with regard to wireless service provided to HighwayMaster.
RECITALS
Whereas, GTE and Carrier, in conjunction with other wireless providers,
desire to facilitate the provision of Roaming to the long haul trucking industry
and other similarly situated entities with similar Roaming patterns (the
"Trucking Industry") in which the majority of wireless usage is in multiple
System Identifications ("SIDs");
Whereas, HighwayMaster and Carrier have a separate Service Agreement
(the "Service Agreement") that defines the relationship between Carrier and
HighwayMaster; and
Whereas, in recognition of the unique requirements of the Trucking
Industry, GTE and Carrier have agreed to amend their existing Roamer Agreement
in accordance with the provisions of this Addendum for purposes of implementing
the HighwayMaster System only in accordance with the terms and conditions of
this Addendum;
NOW, THEREFORE, for and in consideration of these premises and the
mutual covenants, agreements, representations and warranties herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, GTE and Carrier agree as follows:
SECTION 1
GTE AND CARRIER AGREEMENTS
1.1 Technical Specifications and Changes. Carrier and HighwayMaster
have entered into a Service Agreement under which Carrier provides HighwayMaster
certain services which assist HighwayMaster in the operation of its business.
Carrier has established a separate BID# 30445 for the tracking of the Roaming
usage by
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
38
HighwayMaster and Carrier has obtained certain numbers (the "Numbers") that it
uses only in connection with the Service Agreement.
1.2 Validation. Carrier, either itself or through GTE
Telecommunications Services Incorporated ("GTE TSI") or another similar
Clearinghouse, will maintain the Numbers in a database ("Database") that will
permit standard validation of the calls in GTE Markets as communicated by GTE.
GTE TSI shall manage such database at the Carrier's request, and no changes or
modifications shall be made to the database that effect GTE's network, GTE's
wireless service or GTE's validation procedures.
1.3 Billing and Settlement. Subject to Section 1.6, Carrier shall be
liable to GTE for the amount of Roaming usage at the rate set forth in this
Addendum. GTE and Carrier shall use the standard net settlement process for
charges hereunder as specified in Appendix III of the Roamer Agreement. Neither
Carrier, HighwayMaster nor any other entity may edit or adjust the charges under
this Agreement other than as permitted by the standard net settlement procedures
or as authorized in writing by the Carrier.
1.4 Roaming Charge. GTE has entered into this Addendum in reliance upon
(i) the representation and warranties in Section 2 and (ii) the other terms and
conditions of this Addendum. Further, GTE is providing the rates for Roaming set
forth herein only for use with a HighwayMaster System that meets the criteria
and restrictions set forth in this Addendum, including without limitation
Sections 2.2, 2.3, 2.4 and 2.5. Pursuant to the provisions herein stated, GTE
agrees for the term of this Addendum to provide Roaming service in accordance
herewith in those markets set forth on Appendix I at the [TEXT HAS BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SEC.] provided, however, that Carrier may, in its sole
discretion, either terminate this Addendum or increase the rates with sixty (60)
days prior written notice if any of the representations and warranties set forth
in Section 2 are, or become, inaccurate, misleading or untrue. Notwithstanding
any provision contained herein to the contrary, Carrier shall not be required to
provide Roaming Rates to GTE which are contrary to its overall business
objectives and strategies or which are not approved by any regulatory body with
jurisdiction over the matter.
1.5 Territories and Status of GTE. The territories in which GTE shall
provide Roaming to Carrier in accordance herewith are set forth on Appendix I.
Appendix I also sets forth GTE's status as either a preferred Carrier or
secondary Carrier. If GTE is preferred, the HighwayMaster System shall use GTE's
Roaming in the Territories unless such Roaming is inoperable or out of
compliance in which case HighwayMaster will use the Roaming of a secondary
Carrier in that Territory.
1.6 GTE Call Restrictions. GTE agrees that in order to eliminate
incidences of fraud as it relates to the provision of Roaming hereunder in
conjunction with the HighwayMaster System, GTE shall institute, and program its
switches, so that any call, whether inbound or outbound, on a Number associated
with a HighwayMaster System will be routed to one of the 800 Numbers as defined
in Section 2.4 ("Carrier Switch Restrictions"). GTE acknowledges and agrees that
its liability for fraudulent airtime charges as set forth herein is relieved and
shall be borne by Carrier if GTE has in place
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-2-
39
the Carrier Switch Restrictions. To the extent GTE does not institute and
maintain the Carrier Switch Restrictions at all times and neither Carrier,
HighwayMaster or GTE TSI have made any modifications or changes to the Database
that affect the service, programming or restrictions in GTE's facilities,
switches or networks, GTE shall be liable for fraudulent airtime charges
incurred in its Territories. To the extent Carrier's claims for credits for
airtime based on fraud or any other claim exceed ten percent (10%) of airtime
charges under this Addendum in any month, GTE may suspend service under this
Agreement until the reason for such fraud is identified.
1.7 Term. The term of this Addendum shall commence on the date first
written above and shall continue thereafter for a period of one (1) year (the
"Term"). Upon the expiration of the Term, this Addendum shall continue on a
month to month basis unless terminated by either GTE or Carrier with sixty (60)
days prior written notice. Notwithstanding any provisions contained herein to
the contrary, GTE or Carrier may suspend or otherwise terminate this Addendum
upon the termination or expiration of the Service Agreement or relationship
between Carrier and HighwayMaster or upon failure of GTE to be paid for the
Roaming on the due date.
1.8 Limitation of Liability. Neither GTE nor Carrier shall be liable to
the other party or any third party for indirect, incidental, consequential,
punitive, reliance or special damages, including, without limitation, damages
for lost profits, regardless of the form of action whether in contract,
indemnity, warranty, equity, strict liability or tort arising from or related to
the performance of the duties of either GTE or Carrier as set forth herein.
1.9 GTE TSI Interface. A key component of the HighwayMaster System is
the ability of carriers to validate through GTE TSI. Carrier agrees that it has
a link to GTE TSI or another clearinghouse service provider with a gateway to
GTE TSI, or to an IS-41 connection with a gateway to GTE TSI If the Carrier has
consented to use of the IS-41 connection. In the event the Carrier is not linked
to any of the above services, GTE understands that its participation herein
would be limited to markets which adhere to the requirements set forth in this
paragraph.
1.10 Amendment. This Addendum may only be modified or amended by
execution of a written amendment by both GTE and Carrier.
1.11 Additional Applications. To the extent the Parties wish to expand
the use of the Roaming in connection with a specific application or account,
Carrier shall present GTE with an amendment for consideration as set forth in
Section 1.10, and GTE agrees to use good faith efforts to respond within sixty
(60) days from the date it receives the proposed amendment. Nothing herein
commits GTE to expanding or modifying the terms and conditions of this Addenda.
1.12 Nature of the Relationship. The Parties acknowledge and agree that
nothing in this Agreement shall be construed or implied to create a relationship
of partners, agency, joint venture, or employer and employee. Neither Party
hereto shall, in any way, have the authority to bind the other party in any
manner whatsoever.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-3-
40
1.13 Primary Point of Contact. The Parties will each identify a primary
point of contact (the "Contact") for administration of this Agreement.
1.14 Applicable Law. The validity, construction and performance of this
Agreement shall be governed and interpreted in accordance with the laws of the
State of New York.
1.15 Effects of Headings. Headings to articles and paragraphs of this
Agreement are to facilitate reference only, do not form a part of this
Agreement, and shall not in any way affect the interpretation hereof.
1.16 Assignment. Neither this Agreement nor the rights nor obligations
hereunder shall be assigned or delegated, in whole or in part, by Carrier to any
other person, firm or corporation without the prior written consent thereto by
GTE. GTE will provide Carrier written notice of any assignment of this Agreement
by GTE or any divestiture of any Territories . To the extent GTE divests one or
more of its Territories, GTE shall provide Carrier with notice of such
divestiture, but there is no further guarantee of Roaming in a divested
Territory.
1.17 Notices. Except as otherwise provided in this Agreement, all
notices required or permitted to be given hereunder shall be made by registered
or certified mail, return receipt requested, or by an overnight mail service
having a record of receipt and addressed as follows:
If to GTE: GTE Wireless Incorporated
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn. Director, Carrier Alliances
With a copy to: GTE Legal Department
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn. General Counsel
Fax: (000) 000-0000
If to Carrier:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Either party hereto may change its address by providing notice of such
address change to the other party in the manner set forth above. Notices given
as herein provided shall be considered to have been received five (5) days after
mailing thereof, or when actually received, whichever occurs first.
1.18 Severability. Any provision of this Agreement which is prohibited,
unenforceable or is declared or found to be illegal, unenforceable or void, in
any
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-4-
41
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.
1.19 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 each party hereto.
1.20 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.
1.21 Third Parties. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person 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.
1.22 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 provided and shall supersede all
prior proposals, negotiations, understandings and agreements, whether oral or
written.
1.23 NO WARRANTY. GTE AND ITS AFFILIATES MAKE NO WARRANTIES, EITHER
EXPRESSED OR IMPLIED, CONCERNING THE FACILITIES OR THE SERVICE, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE. THIS SECTION SHALL APPLY TO RESELLER OR ANY OF RESELLER'S END
USERS. Carrier expressly acknowledges that GTE shall have no liability for any
failure, defects, malfunctions or errors in the Facilities or for the provision
of service hereunder.
1.24 NO FACILITIES LIABILITY. Under no circumstances will GTE have any
liability to CARRIER or any End User for any causes of action, losses or damages
arising out of (i) mistakes, omissions, interruptions, errors, or defects in
furnishing THE SERVICE, (ii) failures or defects in Facilities, or (iii) GTE's
failure to maintain proper standards or maintenance and operation of the
Facilities or to exercise reasonable supervision with respect to the operations
of the Facilities.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-5-
42
1.25 CAPACITY LIMITATION. The parties recognize that unusual
concentrations of usage may occur in certain locations. GTE shall incur no
liability for its inability to provide adequate service hereunder if such
liability is due to a lack of network capacity which results from the aforesaid
usage concentration, and nothing herein shall require GTE to expend any capital
to insure capacity for service.
SECTION 2
REPRESENTATIONS REGARDING HIGHWAYMASTER SYSTEM AND USAGE
OF ROAMING HEREUNDER
2.1 General. GTE is entering into the above Addendum based on the
representations and warranties made by Carrier in this Section 2. To the extent
any of the representations and warranties below are or become inaccurate,
misleading or untrue (a "Change"), Carrier shall notify GTE in writing (the
"Notification") of such changes. Upon the earlier of the date the Change
occurred or the date of the Notification, GTE may, in its sole discretion
terminate this Addendum with Carrier. Carrier shall have the right upon ten (10)
days prior notice to verify and obtain proof that each representation and
warranty is true and accurate. Carrier acknowledges and agrees that GTE has
provided the Roaming Rate in reliance on the representations and warranties made
hereunder.
The HighwayMaster System shall utilize the Numbers of Carrier that are
not dialable from the Public Switched Telephone Network. At this time, the
Numbers can only be successfully called through the Roamer Access port of the
serving carrier in a wireless market or by the industry standard IS~41 (ANSI-41)
automatic call delivery mechanism if utilized and consented to by GTE
HighwayMaster numbers. The Numbers for a HighwayMaster System will be loaded in
the "valid foreign group" of all carriers participating in providing roaming
under this addendum.
2.2 Description of Service. HighwayMaster has a mobile communications
system utilizing wireless technology and a patented smart phone and other
technology to provide communications and tracking service for the Trucking
Industry (the "HighwayMaster System") and any other applications approved by
Carriers as set forth herein or Section 1.12. The smart phone is a wireless
phone connected to a proprietary software processor placed in each HighwayMaster
System. The smart phone may use a voice recognition technology as a safety
feature and interfaces with a front end processor or PC based system which
resides at a control dispatch or response center ("Dispatch") operated by or for
the HighwayMaster Customer. As each HighwayMaster System, that is located
primarily in a vehicle, travels throughout North America, the HighwayMaster
System generates transmissions that show location, and other necessary
information (the "Tracking Information") to the Dispatch. The Tracking
Information and any call validation is provided to HighwayMaster through a third
party agreement. Through such agreement, a special signal is automatically
transmitted to HighwayMaster's network services center ("NSC") each time a
HighwayMaster System enters into a different SID. All calls, whether inbound or
outbound, are processed by the NSC. A national wireless network created by the
execution of similar Roaming addenda such as this Addendum provides the network
over which the "Tracking Information" will be transmitted.
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-6-
43
2.3 Roaming Requirement. Carrier represents and warrants that the
Roaming usage for each of its Customers and every HighwayMaster System will be
frequent multi state/multi market travel, wherein during two (2) consecutive
months of each quarter in a calendar year, seventy percent (70%) of the Roaming
usage, including *19 validation, occurs in multiple SIDs (the "Minimum Roaming
Requirement"). Carrier shall monitor compliance with this provision.
2.4 Restrictive Dialing. HighwayMaster represents and warrants that
each and every HighwayMaster System will be restricted in the following manner
("Restrictive Dialing"):
(i) calls can only be made to these [TEXT HAS BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SEC.]such additional toll free numbers as shall be
supplied in writing by Carrier and are then consented to in writing by GTE; and
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
SEC.]
2.5 Use of Roaming. The Roaming and the Roaming Rate provided hereunder
shall only be used with all or a substantial portion of the HighwayMaster System
in the Trucking Industry, and such HighwayMaster System will have the
Restrictive Call Delivery and will meet the Minimum Roaming Requirement unless
otherwise agreed to in writing by GTE and Carrier or as expressly set forth
herein. AGREED TO BY:
GTE WIRELESS INCORPORATED CARRIER
By: By:
--------------------------------------- -----------------------------------------------
Title: Title:
--------------------------------------- -----------------------------------------------
Date: Date:
--------------------------------------- -----------------------------------------------
By:
---------------------------------------
Title:
---------------------------------------
Date:
---------------------------------------
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
-7-
44
APPENDIX I
--------------------------------------------------------------------------------
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
Transition Agreement GTE PROPRIETARY AND CONFIDENTIAL
