EXHIBIT 3.6
Digital Freedom Agreement
STRATEGIC ALLIANCE AGREEMENT
This agreement is made on September 15, 2003 by and between Gateway Access
Solutions, Inc. having it principal place of business at 000 Xxxxx Xxxxxx, Xxxxx
"X", Xxxxxxxx, XX 00000 and Digital Freedom having its principal place of
business at 000 Xxxxxx Xxxxxx. Xxxxx 000, Xxxxxxxx XX 00000.
Gateway Access Solutions, Inc. is engaged in the delivery of high-speed wireless
data services in various markets in Pennsylvania. Digital Freedom is engaged in
providing Networking Services, Broadband Internet Services, ISP services and
Access to various subscribers in the area. Therefore it is the purpose of this
agreement to form a Strategic Alliance relationship whereby Digital Freedom can
provide Gateway Access Solutions, Inc. products, services and support to
subscribers in various areas as agreed to from time to time under the terms
defined herein and provide Gateway Access Solutions other support services as
may be agreed to from time to time.
The parties therefore agree that:
1) Duties and responsibilities Digital Freedom:
a) Provides collocation space for Wireless PoP Equipment at Scranton
location;
b) Provides all Internet connectivity for Scranton area customers;
c) Provides roof access and space to mount microwave and wireless service
antennas on their Scranton office building;
d) Sells wireless services in the Scranton area under Digital Freedom
brand name;
e) Bills customers direct in Scranton coverage area and pays Gateway
Access Solutions 50% of all recurring revenue, as defined in Gateway
Access Solutions, Inc SOHO and Enterprise Pricing Matrix, by the 10th
of the month following the month Digital Freedom receives payment;
f) Issues sales/work orders to Gateway Access Solutions for site surveys
and installation services (Method TBD);
g) Pays Gateway Access Solutions all installation fees for customers in
Scranton coverage area;
h) Provides all internet services to their customers in Scranton coverage
area;
i) Acts as a reseller for Gateway Access Solutions, Inc. wireless
products and services in specific coverage areas as defined in Exhibit
"A";
j) Conducts marketing/sales programs on a cobrand basis in Reseller
coverage areas;
k) Has subscribers sign Gateway Access Solutions, Inc. sales contract for
reseller sales;
l) Provides front line wireless subscriber support services Help Desk for
all coverage areas.
m) Receives 30% commission on all monthly recurring revenue fees for
reseller sales during term of agreement;
n) Receives 10% commission on installation fees in Reseller coverage
areas;
o) Provides back up technical support services for PoP's in reseller
coverage areas;
p) Implements marketing plans and operating plans as mutually agreed to;
q) Provides Gateway Access Solutions, Inc. with 90 day rolling sales
forecast monthly as agreed to;
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Duties and responsibilities Digital Freedom - continued
r) Provides site survey support as mutually agreed to;
s) Immediately advises Gateway Access Solutions, Inc. of any market
changes, problems or change in status or direction of Digital Freedom;
2) Duties and responsibilities Gateway Access Solutions, Inc.:
a) Provides wireless delivery service to Digital Freedom subscribers on a
7X24 basis;
b) Provides and maintains all wireless PoP equipment in all markets as
agreed to;
c) Provides all technical support for wireless products and services;
d) Provide wireless delivery bandwidth control to Digital Freedom
wireless subscribers in reseller coverage areas as specified by sales
contract;
e) Provides all connectivity in reseller coverage areas;
f) Maintains CPE inventory to support agreed to forecast;
g) Provides back up help desk support for wireless applications;
h) Provides start up marketing support for launching agreed to marketing
programs including advertising, PR, Mailers, Brochures and seminar
support;
i) Provides ongoing sales support as requested by Digital Freedom;
j) Provides site survey services as mutually agreed to;
k) Provides site installation services as mutually agreed to;
l) Provides sales and support training to Digital Freedom personnel;
m) Conducts all of its business in its own name;
n) Immediately advises Digital Freedom of any market changes, problems or
change in status or direction of Gateway Access Solutions, Inc..;
o) Designs and maintains its wireless PoP to meet industry standards of
performance, availability and reliability.
p) Expands wireless network to provide subscriber coverage for entire
area as mutually agreed to;
q) Provides Digital Freedom first right of refusal to market future
products and services;
r) Provides Digital Freedom opportunity for consideration to same
agreement in any expansion areas planned.
3) Term; The term of this agreement shall be one year commencing on the
effective date of this agreement and may be renewed for subsequent one year
periods upon mutual agreement of Gateway Access Solutions, Inc. and Digital
Freedom made not less than 60 days before the end of any term.
4) Warranties; Except as expressly provided in this agreement neither party to
this Agreement makes no expressed or implied representations, or
warranties, including any warranties regarding merchantability or fitness
for a particular purpose. Under no circumstances shall either party be
liable to the other for special, incidental, indirect, consequential, or
similar damages.
5) Limitation of Liabilities; Liability to either party, if any, for damages
arising out of its negligent provision of any service or failure to provide
service, or for mistakes, omissions, interruptions, delays, errors, or
defects in transmission during the course of furnishing services, shall in
no event exceed the amount equivalent to charges for such services during
the period affected by such negligence, or in which such mistakes,
omissions, interruptions, delays, errors or defects in transmission
occurred. Neither party shall be liable to the other for any act, omission
to act, negligence, or defect in the quality of service of any underlying
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Limitation of Liabilities - continued
carrier or other service provider whose facilities or services are used in
furnishing any portion of the services provided by both parties.
6) Hold Harmless; Each party to this Agreement shall defend, indemnify, and
hold harmless the other party, its officers and directors, employees, and
agents from and against any and all lawsuits, claims, demands, penalties,
losses, fines, liabilities, damages, and expenses (including attorney's
fees) of any kind and nature, without limitation whatsoever, in connection
with the each others operations and performance under this Agreement.
7) Termination of Agreement;
a) Default; In the event that either party shall default on making
payments for services when due or breach any material covenant or
undertaking contained in this Agreement and in the event that the
defaulting party shall fail to remedy any such default or breach
within (60) days from the date of written notice from one party to the
other, then, and in the event, the other party shall have the right to
terminate or cancel this Agreement forthwith upon written notice
thereof.
b) Insolvency; In the event that either party be adjudged insolvent or
bankrupt, or upon the institution of any proceedings by or against it
seeking relief, reorganization or arrangement under the laws relating
to insolvency, or upon any assignment for the benefit of creditors, or
upon the appointment of a Receiver, Liquidator or Trustees of any of
its properties or assets, or upon liquidation, dissolution or winding
up of its business, then in any such event this Agreement may
forthwith be terminated or cancelled by the other parties hereto.
c) Acquisition of Digital Freedom; In the event of the direct or indirect
taking over or assumption of control of Digital Freedom of
substantially all of its assets by any governmental authority or third
party, Gateway Access Solutions, Inc. shall have the right to
terminate or cancel this agreement at anytime thereafter upon giving
written notice thereof to Digital Freedom, and upon giving such notice
of termination or cancellation, this Agreement shall terminate
forthwith.
d) Acquisition of Gateway Access Solutions, Inc.; In the event of the
direct or indirect taking over or assumption of control of Gateway
Access Solutions, Inc. or substantially all of its assets by any
governmental authority or third party, Digital Freedom shall have the
right to terminate or cancel this agreement at anytime thereafter,
upon giving of such notice of termination or cancellation, this
Agreement shall terminate forthwith.
e) Other Rights; Except as otherwise provided herein, termination or
cancellation of this agreement shall terminate all further rights and
obligations of Gateway Access Solutions, Inc. and Digital Freedom
hereunder provided that:
o Neither Gateway Access Solutions, Inc. nor Digital Freedom shall
be relieved of their respective obligations to pay any sums of
money due or payable under this agreement and;
o If such termination or cancellation is a result of a breach
hereof by a party hereto, the other party shall be entitled to
pursue any and all rights and remedies it has to redress such
breach in law or equity.
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8) Relationship of Parties;
Neither party hereto shall have any right whatsoever to incur any
liabilities or obligations on behalf of or binding upon the other party.
Digital Freedom shall be solely responsible for all investments made or
expenses incurred in connection with the establishment of operation of its
business. Digital Freedom especially agrees that it will act under this
Agreement as an independent contractor in accordance with the terms of this
Agreement.
9) Confidentiality;
This Agreement and all of the rates, terms, conditions, business plans,
technology implementation and other information herein, are confidential
and shall not be disclosed by either party to any other person, except as
may be required by a court or government agency acting in accordance with
its jurisdiction. If either party discloses such information to a person
within said party's organization on a need to know basis, such person will
be advised of the confidential and nondisclosable nature of said and
required to abide thereby.
10) Force Majeure;
Neither party shall be responsible for delays or failures in performance
resulting from acts or occurrences beyond the reasonable control of such
party, regardless of whether such delays or failures in performance were
foreseen or foreseeable as of the date of this Agreement, including without
limitation: fire, explosion, acts of God, war, revolution, civil commotion,
or acts of public enemies; ant law, order, regulation, or ordinance of any
government or legal body; strikes; or delays caused by the other party or
any circumstances beyond the parties reasonable control. In such event, the
party affected shall, upon giving proper notice to the other, be excused
from such performance to the extent of such interference.
11) Modifications by Regulatory Authorities;
This Agreement shall at all times be subject to such changes or
modifications by the Federal Communications Commission, the Pennsylvania
Public Utilities Commission. In the event that any of these authorities
requires material modification to this Agreement at any time, any adversely
affected party may terminate this Agreement, without liability, upon thirty
(30)days' notice to the other given no later than sixty (60) days after
that date such modification is required.
12) Assignment -Digital Freedom;
This agreement shall inure to the benefit of and be binding upon Digital
Freedom and its successors and assigns but shall not be assignable by
Digital Freedom without the written consent of Gateway Access Solutions,
Inc. In the event Digital Freedom wishes to delegate the performance on any
of its obligations hereunder to a third party, Digital Freedom must first
obtain written consent of Gateway Access Solutions, Inc., which consent
shall not be unreasonably withheld. Gateway Access Solutions, Inc. reserves
the right to approve all terms of such delegation. Any such purported
assignment or delegation without written consent shall be voidable by
Gateway Access Solutions, Inc. and will then be of no effect.
13) Assignment Gateway Access Solutions, Inc.;
This agreement shall inure to the benefit of and be binding upon Gateway
Access Solutions, Inc. and its successors and assigns but shall not be
assignable by Gateway Access Solutions, Inc. without the written consent of
Digital Freedom, which consent shall not be unreasonably withheld, except
that Gateway Access Solutions, Inc. may assign this Agreement or delegate
its performance hereunder in whole or in part to a directly or indirectly
majority-owned subsidiary of Gateway Access Solutions, Inc. or to a party
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Assignment Gateway Access Solutions, Inc - continued
acquiring substantially all of Gateway Access Solutions, Inc.'s business
and assuming all of its obligations and liabilities including those of this
Agreement.
14) Third Party Sales;
Digital Freedom understands and accepts that Gateway Access Solutions, Inc.
cannot prevent third parties from providing unlicensed wireless services
that are neither subsidiaries nor affiliates of Gateway Access Solutions,
Inc. in the coverage area, nor shall Gateway Access Solutions, Inc. have
any obligation to Digital Freedom or otherwise with respect to such sales.
15) Notices;
Any notices, requests, demands or other communications required or
permitted hereunder shall be deemed to be properly given when deposited in
the United States mail, postage prepaid, or when deposited with a
recognized package delivery service company for transmittal, charges
prepaid, addressed:
a) In the case of Gateway Access Solutions, Inc. to:
Xxxxxx X. Xxxxxx
President/CEO
000 Xxxxx Xxxxxx, "X"
Xxxxxxxx, XX 00000
b) In the case of Digital Freedom to:
Xxxxxxx X. Xxxxxxx
President
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Or to such other persons or address as either company may from time to time
furnish the other.
16) No Implied Waivers;
The failure of either party at anytime to require performance by the other
party of any provision hereof shall not affect in any way the full right to
require such performance at any time thereafter, nor shall the waiver by
either party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself.
17) Arbitration; Attorney's Fees;
If any dispute arises out of or in connection with this Agreement, the
parties agree to submit to arbitration before and arbitrator knowledgeable
in the telecommunications industry. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association with the
exception that the rules of evidence and the rules of civil procedures
shall not apply. If the parties cannot agree on an arbitrator, each party
shall choose an arbitrator and the two arbitrators shall choose a third
arbitrator. The three arbitrators shall then conduct arbitration. The award
of the arbitrators may include costs of the arbitration and reasonable
attorney's fees incurred in connection with any dispute.
18) Waiver of Right to Trial by Jury;
Each party waives the right to a trial by jury in any lawsuit based on or
arising out of this Agreement.
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19) Controlling Law;
The validity, interpretation, and performance of this Agreement shall be
controlled by and construed under the laws of the state of Pennsylvania,
the state under which this Agreement is being executed. It is understood,
however, that this is a general form of agreement, designed for use in the
United States wherever Gateway Access Solutions, Inc. may desire to sell
its services and that any provision hereunder that in any way contravenes
the laws of any state or jurisdiction shall be deemed not to be part of
this Agreement therein. However, all other terms of this Agreement shall
remain in force.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their duly authorized and empowered officers and
representatives as of August 25, 2003.
Gateway Access Solutions, Inc. Digital Freedom
By: /s/Xxxxxx X. Xxxxxx By: /s/Xxxxxxx X. Xxxxxxx
------------------------------------ -----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President/CEO Title: President
Date: September 15, 2003 Date: September 15, 2003
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EXHIBIT "A"
Coverage Area
Private Label area:
Scranton, PA
Reseller Coverage Area:
Xxxxxx-Xxxxx, PA PoP coverage area
Stroudsburg PA
Exclusion: (To be reviewed from time to time)
Xxxxxxxxx Health System, Hospitals, Clinics, Doctors, Transcriptionists
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this Agreement ("Manufacturer Escrow Deposit") and
(ii) all material necessary for GAS to perform ( and to engage third
party contractors on GAS's behalf to perform) any maintenance,
support, error correction, bug-fix, upgrade that would be
provided by or on behalf of PointRed, or otherwise for the
benefit of GAS, under this Agreement ("Support Escrow Deposit").
The escrow agent shall be ("____"). ______. PointRed shall enter into
a Manufacturer escrow agreement ("Escrow Agreement") for the MMDS
products in substantially in the form of ______ Preferred Escrow
Agreements, (a) naming GAS as direct beneficiary thereof; (b)
providing a mechanism for changing the approved manufacturer; and (c)
providing that only in the event that PointRed (i) becomes the subject
of a voluntary or involuntary petition in bankruptcy or any proceeding
relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors. (ii) ceases to do business in the ordinary
course. (iii) elects to discontinue products critical to GAS's
business, or (iv) effects an assignment of this Agreement or its
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Escrow Agreement - continued
obligations hereunder (whether by transfer of control, operation of
law or otherwise) without the consent of GAS, the Manufacturer Escrow
Deposit shall be released to the approved manufacturer and the GAS
Escrow Deposit shall be released to GAS ("Release Condition"). If the
manufacturer initially selected by the Parties to manufacture the
PointRed Products does not enter into the Escrow Agreement or if all
the manufacturers which are parties to the Escrow Agreement become
subject to a voluntary or involuntary petition in bankruptcy or any
proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors or cease to do business in
the ordinary course at any time during the term of this Agreement,
then the Parties will select a new manufacturer who will agree to
enter into the Escrow Agreement and agree to adding such manufacturer
as a party to the Escrow Agreement.
11. Term: This Agreement shall have an initial term of 2 years from the
Effective Date and shall be renewed for an additional 2 year term
unless a party sends written notice of termination not less than 60
days prior to the termination of the initial or any subsequent term.
If any minimum order requirement as set forth in Section 3(b) is not
met, PointRed shall have the right to terminate the exclusivity of
territory and products listed in Exhibit A, by giving 60-day written
notice to GAS.
12. General Terms.
(a) Entire Agreement. This Agreement contains the entire agreement
between the parties, and supersedes all prior negotiations,
drafts, and other understandings which the parties may have had
concerning the subject matter hereof.
(b) Relationship of Parties. The parties hereto intend to create a
relationship of manufacturer - distributor. Nothing in this
Agreement shall be construed to create any other relationship,
including, but not limited to, joint venturers, partners, or
employer - employee.
(c) Successors. The provisions of this Agreement shall inure to the
benefit of, and shall be binding upon, the heirs, successors,
executors, administrators and assigns of the parties hereto.
(d) Amendments. This Agreement may not be amended or modified except
by written documents signed by all parties.
(e) Severability. Whenever possible, each provision of this Agreement
shall be interpreted so as to be effective and valid under
applicable law. If any provision of this Agreement is held to be
prohibited by, or invalid under, applicable law, the remainder of
this Agreement and any other application of such provision shall
not be affected thereby.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an
original instrument. All such counterparts together shall
constitute one and the same Agreement.
(g) Notice. Any notice, demand, request, consent or other
communication which either party desires or is required to give
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Notice - continued
to any other party shall be in writing and shall be deemed to
have been given when either: (a) delivered in person or by
facsimile transfer, or (b) sent by overnight courier or
first-class registered or certified mail, postage pre-paid,
return receipt requested, addressed to such party at the address
set forth following each party's signature to this Agreement.
Either party may designate another address for itself at any time
upon written notice to the other party.
(h) Fax Transmission. The facsimile transmission of a signed copy of
this Agreement or any amendment thereto to the other party or his
agent, followed by faxed acknowledgment of receipt, shall
constitute delivery of such document.
(i) Headings. The titles and headings of the various sections of this
Agreement have been inserted only for convenience of reference.
They are not part of this Agreement and may not be used to
construe or interpret any of the terms hereof.
(j) Expense of Enforcement. If any action, proceeding or litigation
is commenced to enforce any provision of this Agreement, then the
prevailing party shall be entitled to be reimbursed by the
unsuccessful party for all costs incurred in connection with such
action, proceeding or litigation, including a reasonable
allowance for attorneys' fees and costs, which amount shall be
added to and become part of the final decision in such matter.
(k) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of California, without
giving effect to principles of conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on
the date specified below.
POINTRED TECONOLOGIES
Signature: /s/ Xxxxx Xxx
---------------------------------
Printed Name: Xxxxx Xxx
Title: CEO
Date: 1-15-2004
Address for Notice:
PointRed Technologies
000 X. Xxxxxxx Xxxx, Xxxx 0, Xxx Xxxx, XX 00000
GATEWAY ACCESS SOLUTIONS, INC.
Signature: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Printed Name: Xxxxxx X. Xxxxxx
Title: CEO
Date: 1/15/2004
Address for Notice:
930 Tahoe Bvld. 000-000
Xxxxxxx Xxxxxxx, XX 00000
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Exhibit A
Territory and Products
Exclusive Territory:
All of the United States.
Authorized Products:
All MMDS/ITFS (2.5 - 2.6GHz) Products offered.
Non-Exclusive Territory:
The remainder of the world outside of the Exclusive Territory.
Products authorized for Non-Exclusive Territory: All PointRed Products
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Exhibit B
Price List MMDS/ITFS (2.5 - 2.6 GHz) Products
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Part # Description List
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M250 BTS/PTM Base Station, transceiver $4,250.00
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M250 BTS/PTM
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(4Mbit)
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M250 BTS/PTM Base Station, transceiver $6,375.00
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M250 BTS/PTM
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(8Mbit)
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4 Mbs
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M250T - 2.5 (CPE) Transceiver 4 Mbs (requires Antenna) $420.00
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M250M - 2.5 (CPE) Modem 4 Mbs (requires power supply)
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8Mbs
-------------------- -------------------------------------- --------------
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M250T - 2.5 (CPE) Transceiver 8 Mbs (requires Antenna) $598.00
-------------------- -------------------------------------- --------------
M250M - 2.5 (CPE) Modem 8 Mbs (requires power supply)
-------------------- -------------------------------------- --------------
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Price List MMDS/ITFS - continued
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M250PTP Indoor 2.5GHz, 1 master and 1 slave transceiver
(without antenna) $1,646.25
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Point to Point
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M250PTP OutDoor 2.5GHz pttopt out door system $3,756.25
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Point to Point
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M250SAR 2.5GHz Standalone router extended cellular
reach $2,995.00
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