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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1) 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
carrier or other service provider whose facilities or services are used in
furnishing any portion of the services provided by both parties.
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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 acquiring
substantially all of Gateway Access Solutions, Inc.'s business and assuming
all of its obligations and liabilities including those of this Agreement.
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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.
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
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19) Controlling Law - continued
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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