Exhibit 1.1
NETWORK INSTALLATION AGREEMENT BETWEEN
SAT-NET COMMUNICATIONS, INC. AND SIRICOMM, INC.
This Agreement entered into this 7 day of February , 2005 between
Sat-Net Communications, Inc. ("Sat Net"), an Oklahoma corporate having its
principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ and SiriCOMM, Inc. ("SiriCOMM"), a Delaware corporation having its
principal place of business located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, SiriCOMM is in the process developing a broadband wireless
network infrastructure for the commercial transportation industry market that,
when developed, will allow users to connect to the SiriCOMM network through
wireless transmission and receiving equipment installed in strategic locations
that will include, but not be limited to, truck stops and weigh stations;
WHEREAS, Sat-Net desires to assist SiriCOMM in development and
installation of its broadband wireless network infrastructure;
NOW THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Term. The "Initial Term" shall begin on the date hereof, (the "Effective
Date"), and end upon the completion of sixty (60) months. The Agreement will be
automatically extended ("Extended Term") on a year to year basis upon the
expiration of the Initial Term, unless either party has delivered written notice
of its intent to terminate the Agreement at least ninety (90) days prior to the
end of the Initial Term. Either party may terminate this Agreement during the
Extended Term upon sixty (60) days prior written notice: Term shall mean the
Initial Term and the Extended Term.
2. Duties of Sat-Net. Sat-Net agrees to perform all work hereunder in a manner
consistent with reasonable construction standards and any damage caused to
property shall be the responsibility of Sat-Net. Sat-Net also agrees to perform
all work in such a way as to minimize interference with the operation of the
Locations. Sat-Net will implement a best practices policy designed to prevent
and/or mitigate interference with any other wireless service, computer network
or any other service used by the Locations or their customers. Sat-Net shall
provide the following:
2.1 Sat-Net will provide and install V SAT/802.11 terminals at up to *
truck-stop locations (the "Locations") at a turnkey price of $* per site and in
accordance with the provisions of paragraph 3. Any freight charges needed to
deliver the Equipment to the various sites shall be borne by SiriCOMM.
Subsequent installations for sites based on the same criteria will be completed
at a turnkey price not to exceed *% over the $*.
If the cost to Sat-Net exceeds the subsequent installation turnkey
price, it is understood that SiriCOMM and Sat-Net will negotiate in good faith
to pay for the cost overrun. In the event of change orders, the turnkey price
will be adjusted accordingly so long as both Parties agree in writing upon such
changes.
2.2 SiriCOMM will provide support for the access points including the
2.4-GHz and 915-MHz Radio and the Remote Server located at the prescribed
locations so long as they are within the confines of the Continental U.S.
Support shall include problems that occur due to hardware or software failures.
2.3 Sat Net has assisted SiriCOMM in reaching an agreement with a
satellite provider for necessary bandwidth. SiriCOMM will be responsible for
satellite carrier transponder access at its sole expense.
2.4 Sat-Net has provided to SiriCOMM a sufficient number of complete
terminal units and sufficient hardware and satellite service in order for
SiriCOMM to conduct reasonable testing of the wireless network infrastructure.
SiriCOMM may at its option return said equipment to Sat-Net upon completion of
its testing, or pay Sat-Net for equipment.
2.5 Sat-Net shall use reasonable efforts to have each Location built,
installed and operational within ninety (90) days of the date SiriCOMM orders an
installation.
2.6 SUBCONTRACTORS. Subject to the limitation contained in Section 9,
Sat-Net may subcontract its performance of the Services to one or more
Subcontractors. Prior to performing any Services, each Subcontractor must be
fully trained by Sat-Net as required to perform Service.
2.7 Sat-Net shall install the access points in such manner as to
provide sufficient wireless access from all areas within the truck parking area.
Sufficient wireless access shall be defined as providing adequate signal
strength between client computer and the access point as to support data
exchange with minimal packet loss.
2.8 Sat-Net shall invoice SiriCOMM monthly for all charges under this
Agreement. All invoices will be payable within thirty (30) days of receipt of
invoice. Delinquent payments are subject to a late payment charge at the
annualized rate of Prime Plus Four (4) computed monthly, or portion thereof, of
the amount due but not to exceed the maximum lawful rate. In the event Idling
Solutions, LLC shall fail to pay SiriCOMM any amount due unless it is disputed
under this Agreement, for forty (40) days, SiriCOMM, in addition to charging
applicable delinquency fees, may discontinue providing services to Idling
Solutions upon seven (7) days prior written notice.
3. Infrastructure. SiriCOMM shall be responsible for acquiring Locations for
installation, all at its sole expense. Components to be provided and installed
by Sat-Net at each Location shall include: a two-way VSAT dish with
receiver/transmitter, satellite router, server, wireless local area network
(WLAN) access points, and wiring. The configuration of said equipment shall be
agreed to prior to manufacturing and installation.
4. Equipment Ownership. Sat-Net acknowledges that the Equipment, except for the
915-MHz radio installed in the SiriCOMM access point per section 4.1, shall at
all times remain the property of SiriCOMM and agrees not to adjust, operate,
modify, move, or affect in any way the Equipment without prior written approval
from SiriCOMM.
4.1 CUSTOMER-PROVIDED EQUIPMENT. SiriCOMM grants to Sat-Net the right
to install certain Customer-provided communications equipment upon installation
of Service; unless otherwise agreed by Sat-Net in writing, SiriCOMM shall
thereafter be responsible for the operation or maintenance of such equipment and
Sat-Net shall at all times maintain ownership of such customer-provided
equipment.
4.2 REMOVAL OF EQUIPMENT. SiriCOMM agrees upon twenty-four (24) hours
written notice to allow Sat-Net to remove al Sat-Net-owned equipment form the
Premises:
(a) After termination, interruption or suspension of the
Service in connection with which the equipment was used;
(b) For repair, replacement or otherwise as Sat-Net may
determine is necessary or desirable; and (c) Sat-Net shall provide to
SiriCOMM first right of refusal to purchase any equipment that is to be
removed.
4.3 Customer-provided Equipment Warranty. SiriCOMM provides no warranty
for any Customer-provided equipment. Sat-Net is solely responsible for any
Customer-provided equipment hardware or customer-developed software failures.
5. Operations. SiriCOMM will be responsible for the activities of the Network
Operations Center (NOC) at its sole expense. The NOC activities shall include
24/7 monitoring of service, network maintenance, and customer service center.
6.1 Representations and Warranties of Sat-Net. Service Levels. Sat-Net
warrants that it is experienced in the work and services to be provided herein,
possesses the skills and resources to complete the construction of and
installation of the Equipment and to provide the services. All work shall be
performed in a good and workmanlike manner by qualified, careful and efficient
workers in accordance with this Agreement, in reasonable conformity with the
best standard practices and in a manner protective of its employees, the public
and the environment.
6.2 Sat Net, will warrant the equipment supplied to SiriCOMM to be free
from material defects. This warranty is for a period of ninety (90) days from
the original date of installation commissioning at each location. The parties
agree that commissioning shall be upon which time as the AP and Server are
initially sending data over the satellite network. Defects in installation
workmanship or product design will be covered for the life of the product.
Sat-Net does not warrant fitness for purpose in any specific application, nor
does the warranty cover misuse, abuse, or damage due to power sources,
lightning, or other acts of nature. Sat-Net's sole
liability is to repair, replace, or refund at Sat Net's option. There shall be
no further warranty expressed or implied. 7. Additional Consideration to
Sat-Net. In addition to the foregoing cash consideration, SiriCOMM shall provide
Sat-Net additional equity consideration as set forth below, to be delivered at
such time as the wireless network infrastructure contemplated herein has been
installed and is operational. As defined below in Paragraph 7.3.
7.1 SiriCOMM will issue to Sat-Net 2,000,000 shares of its common
stock. So long as such shares are not freely tradable, Sat-Net will be entitled
to unlimited "piggyback" registration rights on registrations of SiriCOMM
shares. The usual and customary registration expenses shall be borne by
SiriCOMM. In the event SiriCOMM registers all or part of the 2,000,000 shares,
Sat-Net agrees to enter into an agreement with SiriCOMM that will restrict
Sat-Net from selling more than 100,000 shares of SiriCOMM's common stock in any
given 30-day period. Sat-Net shall be limited to all SEC rules that govern any
such sales. The registration rights and the restriction agreement, if any, will
terminate when all shares can be sold in any three-month period under the SEC's
Rule 144.
7.2 SiriCOMM will grant to Sat-Net 1,000,000 warrants to purchase
common stock. The warrants will have a 3-year life and will be exercisable at a
$2.00 per share price. The warrants will not be exercisable until they have
vested, which will occur at the rate of 2,500 warrants per truck-stop location
installation completed each month; provided, however, that the vesting with
respect to the first 250 locations will be deemed to occur when the wireless
infrastructure is "network operational".
7.3 For purposes of this provision, "installed and operational: shall
mean such time as Sat-Net is able to demonstrate data being transmitted from the
terrestrial link back to SiriCOMM or the Internet via a satellite network
utilizing such number of truck stop locations (*) as SiriCOMM schedules for
installation in the first forty-five (45) days from the signing of the
Memorandum of Understanding dated February 11, 2004. Said Memorandum of
Understanding shall be attached as Exhibit A.
8. Termination For Cause. Any party may terminate this Agreement for Cause.
"Cause" shall mean a breach by another party of any material provision of this
Agreement, provided that written notice of the breach has been given to the
breaching party, and the breach has not been cured within thirty (30) days after
delivery of such notice.
9. Confidential Information. Commencing on the Effective Date and continuing for
a period of three (3) years from the termination of this Agreement, each party
shall protect as confidential, and shall not disclose to any third party, any
Confidential Information received by the disclosing party or otherwise
discovered by the receiving party during the term of this Agreement, including,
but not limited to, the pricing and terms of this Agreement, and any information
relating to the disclosing party's technology, business affairs, and marketing
or sales plans (collectively the "Confidential Information"). The parties shall
use Confidential Information only for the purpose of this Agreement. The
foregoing restrictions on use and
disclosure of Confidential Information do not apply to Information that: (a) is
in the possession of the receiving party at the time of its disclosure and is
not otherwise subject to obligations of confidentiality: (b) is or becomes
publicly known, through no wrongful act or omission of the receiving party; (c)
is received without restriction from a third party free to disclose it without
obligation to the disclosing party; (d) is developed independently by the
receiving party without reference to the Confidential Information or (e) is
required to be disclosed by law, regulation, or court or governmental order.
10. Assignment. No party may assign this Agreement or any of its rights
hereunder without the prior written consent of the other parties, which consent
shall not be unreasonably withheld.
11. Service Marks, Trademarks and Publicity. No party shall: (a) use any service
▇▇▇▇ or trademark of another party; or (b) refer to another party in connection
with any advertising, promotion, press release or publication unless it obtains
the other party's prior written approval.
12. Notice. All notice hereunder shall be in writing and either transmitted via
overnight courier, electronic mail, hand delivery or certified or registered
mail, postage prepaid and return receipt requested to the parties at the
addresses provided on page 1. Notices will be deemed to have been given when
received.
13. Entire Agreement. This Agreement (and any Attachments and other documents
incorporated herein by reference) constitutes the entire agreement between the
parties with respect to its subject matter and supersedes all other
representations, understandings or agreements that are not expressed herein,
whether oral or written. Except as otherwise set forth herein, no amendment to
this Agreement shall be valid unless in writing and signed by all parties.
14. Dispute Resolution. Any dispute or claim in law or equity arising out of
this Agreement shall be decided by binding arbitration held in and in accordance
with the applicable rules of the American Arbitration Association, and shall be
heard in the city where the respondent party has its principal place of business
or as near thereto as is practicable. Judgment upon any award rendered may be
entered in any court having jurisdiction. The parties shall have the right of
discovery in accordance with the laws of the state wherein such arbitration is
to be heard. The filing of a judicial action to enable the recording of a notice
pending action, for order of attachment, receivership, injunction or other
provisional remedies, shall not constitute waiver of the right to arbitrate
under this provision. Should either party seek to enforce the provision of this
memorandum or any arbitration award against the other, the prevailing party
shall be entitled to an award of reasonable attorney's fees, arbitration filing
and forum costs and court costs incurred.
15. Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SAT-NET MAKES NO
REPRESENTATIONS OR WARRANTIES REGARDING THE EQUIPMENT, INCLUDING BUT NOT LIMITED
TO AN IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No party will
be liable to another party for any indirect, special, punitive or consequential
damages, including but not limited to damages based on loss of service, revenue,
profits or business opportunities.
16. Indemnities. Sat-Net shall repair any damage to the Locations caused by
Sat-Net, its employees, or its agents. Sat-Net shall hold harmless and indemnify
SiriCOMM from and against any and all losses or damages (including reasonable
attorneys' fees) arising from or with respect to its installation or removal of
the equipment, except to the extent caused by negligent or intentional acts or
omissions, of SiriCOMM or its agents or its employees. SiriCOMM shall hold
harmless and indemnify Sat-Net from and against any and all losses or damages
(including reasonable attorneys' fees) arising from or with respect to
SiriCOMM's negligent or intentional acts or omissions, including those of
SiriCOMM's agents or employees. The indemnity obligations of the parties shall
survive any expiration or earlier termination of this Agreement.
17. Successors and Assigns. The benefits and obligations of this Agreement shall
inure to and be binding upon the successors, assigns, heirs, and personal
representative of the parties.
18. Counterparts. This Agreement may be executed in one or more counterparts,
each of which when so executed shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
19. Severability. The parties acknowledge and agree that their respective
interests, rights and obligations under this Agreement are mutually dependent
and are all part of a single, integrated transaction which is not and shall not
be severable in any respect or circumstance. If, however, any portion of the
Agreement should ever be declared invalid for any reason, such invalidity shall
not affect the remaining provisions of the Agreement.
20. Headings. The section headings contained in this Agreement are for
convenience only and shall not enlarge or limit the scope or meaning of the
various and several sections hereof. Words in the singular number shall be held
to include the plural, unless the context otherwise requires.
In Witness Whereof, the parties have executed this Agreement through
their duly authorized representatives as of the date first written above.
Sat-Net Communications, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
SiriCOMM, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President