Exhibit
10.8


 


PRIVATE NETWORK
SATELLITE SERVICES AGREEMENT


 


This PRIVATE NETWORK SATELLITE SERVICES AGREEMENT
(“Agreement”) is made as of this 29th day of November, 2000, by and between Motient Services Inc. (“Motient”), a
wholly-owned subsidiary of Motient
Corporation, both of which are Delaware corporations having their
principal places of business at 10802 Parkridge Boulevard, Reston, Virginia
201915416, and Aether Systems, Inc.,
(“private network customer,” or “PNC”) a Delaware corporation having its principal
place of business at 11460 Cronridge Drive, Owings Mills, Maryland, 21117.


 


WHEREAS, [*]


 


WHEREAS, Motient’s
service lines include the sale of mobile satellite service on a private network
basis to its customers for their use and/or resale; and


 


WHEREAS, Motient
and PNC have entered into an agreement whereby Motient will sell to PNC certain
of Motient’s assets related to or used or useful in Motient’s wireless
communications business for the transportation industry (the “Transportation
Business”), excluding Motient’s FCC licenses, all as set forth in greater
detail in the Asset Sale Agreement, dated November 29, 2000, by and between
Motient Services Inc. and PNC (the “Asset Sale Agreement”); and


 


WHEREAS, the Asset
Sale Agreement contemplates that Motient and PNC will enter into this Agreement
for the purpose of enabling PNC to resell the Service (as defined below) in
connection with its assumption of the Transportation Business pursuant to the
Asset Sale Agreement; and


 


WHEREAS, PNC is
willing and desirous of purchasing mobile satellite service (the “Service”) on
a watt-hour basis on the terms and conditions act forth in this Agreement.


 


NOW, THEREFORE, the
parties agree as follows:


 


Article One

Term; Relationship of the Parties


 


1.1          Term:


 


This Agreement shall begin on November 29, 2000 and
shall end on November 29, 2004 (“Initial Term”) At the end of the Initial Term,
this Agreement may be renewed on terms and conditions and at rates agreed to in
writing by the parties, provided that neither party is in default under this
Agreement. Notwithstanding the foregoing, if, at the end of the Initial Term,
PNC has made all of the prepayments described in section 2.1(c) below, but has
not then consumed the Capacity Limit (as defined in section 1.2 below), and if
PNC wishes to continue to receive the Service, the term of the Agreement shall
be extended, with and subject to the same terms and conditions, until such date
that PNC has used all of the Capacity Limit. The Initial Term, and any
extension thereof in accordance with the preceding sentence, shall also
automatically end, with no further liability or obligation on the part of
Motient, upon the end-of-life of Motient’s satellite, which is defined as the
earlier of: [*]


 












* Confidential information. Information has been
redacted. 


 

















 


1.2          Service Capacity
Limit:


 


The maximum amount of Services that may be provided to
PNC pursuant to this Agreement (the “Capacity Limit”), as measured in Watts and
Kilohertz consumed, shall be, subject to availability, as set forth below:


 


	
  Year

  	
   

  	
  Watts

  	
   

  	
  Kilohertz

  	
   

  
	
  1

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  
	
  2

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  
	
  3

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  
	
  4

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  



 


All Service used by PNC will count against the
Capacity Limit. Unless agreed otherwise in writing by Motient, PNC’s use of the
Service shall be limited to Service Consumed in connection with PNC’s
assumption and provision of the Transportation Business pursuant to the Asset
Sale Agreement. During the Term of the Agreement, Motient may, upon request of
PNC and subject to availability, choose to provide Service to PNC in excess of
the Capacity Limit, on terms and conditions satisfactory to Motient; Motient
shall not be under any obligation to provide such Service.


 


1.3          PNC’s
responsibilities:


 


PNC’s responsibilities under this Agreement shall
include, in addition to any others stated in this Agreement -


 


(a)           Marketing
and promotion: PNC shall market and promote the Service to its customers
and potential customers on a “private label” basis. PNC shall not use Motient’s
name, brand names, trademarks or servicemarks without Motient’s advance written
consent. Notwithstanding the foregoing, PNC may identify Motient as its
satellite service provider.


 


(b)           Facilities
provided by PNC: With respect to the “satellite only” and “multi-mode”
mobile messaging services included in the Transportation Business and being
sold to PNC pursuant to the Asset Sale Agreement, the parties have agreed on
the configuration of all facilities necessary to enable PNC to obtain the
Service in order to resell such messaging services to customers in the
Transportation Business (such facilities and configuration, the “Current
Facilities”). Such agreement is set forth, in part in the Transition Services
Plan incorporated in the Asset Sale Agreement, as well as an Land Earth Station
Services Agreement to be entered into by Motient and PNC on the date hereof.


 


With respect to any new or additional services or
applications (“New Offerings”) that PNC may choose to offer in the future
making use of the Service, PNC shall be responsible, at its sole expense, for
providing or arranging for the provision of all other communications services
and facilities required for its and its customers’ use of the Service, except
for the communications services and facilities described in section 1.4 of this
Agreement. Without limitation, for any New Offerings PNC shall provide all
necessary downlink equipment, including 70 MHz receivers and usage data files,
and PNC shall arrange for termination and


 












* Confidential Information. Information has been redacted. 


 

















 


installation of necessary data lines at Motient’s
facility, provided that installation shall be coordinated with Motient and
shall not interfere with the operation of Motient’s own facilities. For any New
Offerings, the facilities to be provided by PNC shall be more specifically
defined in a technical document to be agreed upon in writing by the parties
pursuant to section 1.5 of this Agreement.


 


(c)           Other
facilities requirements:


 


(1)           Compliance
with Motient requirements and standards: 
All of PNC’s communications facilities or services used or provided in
connection with the purchase or use of the Service, including, without
limitation, mobile terminals for use by PNC’s customers, PNC’s interconnection
facilities and equipment, if any, shall comply with all applicable technical
and other requirements, including but not limited to those of Motient and the
FCC. Motient will provide its applicable requirements to PNC upon request;
Motient reserves the right to change such requirements from time to time, upon
reasonable notice to PNC.  PNC shall
assure that its customers utilize the Service in accordance with any
requirements and/or procedures specified by Motient pursuant to any
implementation Plan entered into by the parties pursuant to section 1.5 of this
Agreement.


 


(2)           Licenses
and permits: PNC shall secure all licenses, permits, rights-of-way,
approvals, and any other arrangements required to be secured by PNC for PNC’s
use and the provision of the Service to PNC’s customers, including without
limitation any FCC or other governmental licenses, permits or approvals
required in connection with the interconnection facilities which PNC may
provide as set forth herein, excluding for the avoidance of doubt all such
licenses, permits, rights-of-way, approvals, or other arrangements that are
being transferred to PNC pursuant to the Asset Sale Agreement.


 


(3)           Motient
right of access: For the protection of Motient’s network, services,
facilities and personnel, PNC hereby grants Motient the right at any time, and
from time to time, upon reasonable prior notice except in the case of an
emergency, to inspect all equipment and communications facilities or services
used or provided by PNC for use with Motient’s mobile satellite system if
Motient has a reasonable basis to believe that such facilities would interfere
with the operation of Motient’s facilities or impair Motient’s compliance with
applicable law or regulations.


 


1.4          Motient’s
Responsibilities:


 


(a)           In
addition to any other responsibilities contained herein, Motient will provide
the Service for use throughout the United States, in Puerto Rico, the U.S.
Virgin Islands, and points up to 200 miles offshore, and other areas within the
coverage of Motient’s satellite, provided that Motient has received regulatory
approval to provide Service in such other areas. In connection with its
provision of the Service, Motient will be responsible for providing and
maintaining its Satellite, earth stations, and other network components owned
by Motient and used in providing the Service.


 


(b)           Motient
will provide the Current Facilities, as in place at the time this Agreement is
signed, and as further described in the Transition Services Plan incorporated
in the Asset Sale


 

















 


Agreement and in the Land Earth Station Services
Agreement. For any New Offerings, Motient and PNC cooperate to agree on the
provision of appropriate facilities and space for rack(s) of uplink equipment
to be provided by PNC. As part of such agreement with respect to any New
Offerings, Motient will also agree to provide use of its “house clock” and
power, and will agree to terminate such number of data lines as the parties may
agree in the technical document to be developed pursuant to the provisions of
section 1.5 of this Agreement. Termination of data lines does not include
provision of telephone service, but only connection of the lines to the central
office.


 


(c)           Motient
shall cooperate with PNC in its efforts to secure any licenses, authorizations,
or other government approvals needed to interconnect with and/or make use of
Motient’s facilities. provided under this Agreement to offer the Service.


 


(d)           The
Service Level Commitments and Escalation Procedures set forth in Exhibit A
to this Agreement are incorporated by reference herein.


 


1.5          Service integration
with respect to New Offerings:


 


(a)           For
any New Offerings, the parties shall enter into a plan for testing and
implementation of the Service with respect to such New Offerings
(“Implementation Plan”). The Implementation Plan shall address, at a minimum,
the following:


 


(1)           The
schedule for implementation of the Service by PNC;


 


(2)           Installation,
integration, and testing of PNC equipment located at Motient with Motient’s
facilities and services;


 


(3)           Integration
of and testing of the Service with PNC’s other products, services, and
facilities;


 


(4)           Processes
and procedures for maintenance and repair.


 


(b)           Pursuant
to the Implementation Plan, the parties shall prepare and agree in writing upon
a technical document that describes the facilities, equipment, and any related
services to be provided by each party.


 


(c)           Motient
shall make available to PNC, [*] a commercially reasonable level of “second
level” technical assistance, i.e., assistance with the Motient satellite
network, RF engineering assistance relating to the integration of the Services
with PNC’s facilities, and assistance with the use of the Service by PNC. The
parties acknowledge and agree that all “first level” assistance, i.e., customer
support and assistance for end users of PNC’s product offerings, shall be the
obligation of PNC. [*]


 












* Confidential
information.  Information has been
redacted.


 

















 


1.6          Fraud prevention:


 


(a)           The
Service is provided to PNC subject to the condition that PNC will not engage
in, and will require its customers not to engage in, abuse or fraudulent use
thereof. Abuse and fraudulent use include, but are not limited to, the
following:


 


(1)           Obtaining
or attempting to obtain Service through any trick, scheme, false
representation, false credit device, or other facilities, with the intent to
avoid payment, in whole or in part, of the charges for the Service; or


 


(2)           Interrupting,
altering, or interfering with, or attempting to interrupt, alter, or interfere
with, any tiles, programs, information and/or the use of the Service of another
Motient customer or user; or


 


(3)           Assisting
another to perform any of the acts prohibited in subparagraph (1) or (2) of
this paragraph (a).


 


(b)           PNC
and Motient shall cooperate to prevent abuse or fraudulent usage of the
Service, and PNC shall terminate any of PNC’s customers, or participation in or
access to the Service by its vendors, promptly, but in no event more than 24
hours after receipt of notice from Motient, in the event of their abuse or
fraudulent use of or access to the Service or any other Motient facility.


 


1.7          General:


 


(a)           Contacts
and coordination: The parties shall appoint and identify to one another in
writing such contacts as are reasonably necessary for coordination of matters
relating to technical, administrative, and billing functions and activities, as
well as any other appropriate matters. To the extent necessary, each party
shall identify a single point of contact for the development and performance of
any Implementation Plan provided for in section 1.5(a) of this Agreement.


 


(b)           Advertising
and promotion:


 


(1)           All
advertising and promotion by the parties shall conform to the standards of
lawful advertising. All advertising and promotional materials prepared by a
party which refer to the other party, or any other public statements referring
to the terms of this Agreement, shall be submitted to the other party in
advance for written approval. Such written approval (i) shall not unreasonably
be withheld, conditioned, or delayed and shall be deemed given if such other
party does not object to the submission within ten (10) business days after
receipt thereof, and (ii) shall not relieve the generating party of
responsibility for legal compliance with the advertisement. Materials
previously approved by a party shall not be subject to repeated approvals
before subsequent use.


 


(2)           Neither
party shall have any right, title or interest in or to the other’s name, logo,
trademarks or other trade designations, and neither party shall make any use
thereof without the express prior written permission of the other.


 


(3)           Nothing
herein is intended to prohibit PNC from identifying Motient as PNC’s satellite
service provider, and PNC shall not be required to obtain Motient’s prior
written approval for any such statement or identification in any advertising or
promotional materials.


 

















 


(c)           Ethical
responsibilities of the parties: Motient and PNC shall each refrain from
doing anything that would tend to discredit, dishonor, reflect adversely upon,
or in any manner injure the reputation of the other or adversely affect the
other, or, in the case of Motient, adversely affect Motient’s status as a
licensed common carrier, except that a party’s enforcement of its rights and
performance of its duties and obligations contained heroin shall not be deemed a
violation of the provisions of this paragraph (c).  Each party shall be governed in all its dealings under this
Agreement by the highest standards of honesty, integrity, and fair dealing.


 

















 


Article Two

Rates, Billing, and Payment


 


2.1          Rates and charges;
prepayments:


 


The rates for the Service are as follows:


 


(a)           Service:


 


	
  Per
  Watt per year:

  	
  [*]

  
	
  Per
  Kilohertz per year:

  	
  [*]

  



 


(b)           Rack
rental:


 


[*]


 


(c)           Prepayment
Obligation: PNC agrees to prepay Motient for the Services, according to the
following schedule:


 


[*]


 


(d)           Usage
Reports:


 


[*].


 


(e)           Payment
for Excess Usage:


 


[*]


 


2.2          Taxes:


 


All rates set forth in this Agreement are exclusive of
Applicable Taxes, which shall be the responsibility of PNC. For purposes of
this Agreement, “Applicable Taxes” are taxes, assessments, surcharges, levies,
or similar items assessed by a governmental body. Unless an appropriate tax
exemption certificate is provided, PNC is liable for, and shall indemnify
Motient from and against all Applicable Taxes properly chargeable to PNC or its
customers with respect to Motient’s provision of the Service to PNC or relating
to PNC’s purchase, use, resale, or lease of the Service to PNC’s customers or
others, and/or any penalty and interest thereon if assessed by the applicable
governmental body. Motient will invoice PNC for such penalties and interest,
and PNC shall pay such invoices in accordance with the provisions of section
2.3 of this Agreement. PNC shall not be responsible for Motient’s income tax
obligations in connection with Motient’s provision of the Service to PNC.


 


2.3          Terms of payment:


 


(a)           Payment
due date: [*].  All amounts invoiced
under this Agreement shall be payable 30 days from the date of invoice.


 












* Confidential Information. Information has been redacted. 


 

















 


(b)           Disputed
Amounts:  The parties shall meet to
resolve any dispute concerning the amount duo on any invoice. If the parties
are unable to resolve the dispute, it shall be resolved pursuant to the audit
procedure set forth in section 2.4. If the parties agree that PNC is liable for
not less than the entire disputed amount, interest shall be due and calculated
from the due date of the invoice, and PNC shall make the agreed-upon payment
within 15 days of such agreement.


 


(c)           Collection
costs:  If Motient takes any action
to collect any unpaid balance due from PNC, Motient shall be entitled to
recover from PNC all reasonable costs of collection incurred by Motient,
including collection fees; reasonable attorney’s fees, and litigation expenses.
Motient will invoice PNC for such charges, and PNC shall pay such invoices in
accordance with the provisions of paragraph (a) of this section.


 


2.4          Recordkeeping and
audit:


 


(a)           Maintenance
of records: Each party shall, directly or through a third party service
bureau, create and maintain full, complete and accurate records of business
conducted pursuant to this Agreement, including but not limited to data
relating to invoices, payments, and Service credits. Records shall be retained
for the longer of two (2) years after the termination of this Agreement, or as
long as required by applicable law.


 


(b)           Request
for audit: If the parties have a bona fide dispute as to the amounts paid
or unpaid, owed and owing hereunder, each party reserves the right to request,
no more frequently than annually, an audit of the records maintained by the
other party in connection with the transactions contemplated hereby.


 


(c)           Performance
of audit: Such an audit shall be performed by an independent accounting
firm agreed upon by Motient and PNC and shall be subject to the audited party’s
standard security and confidentiality procedures. To the extent the audited
party identifies its records as confidential and/or proprietary, it may direct
that the other party shall have access only to the results of the audit and not
to the underlying records which are the subject of the audit.


 


(d)           Cost
of audit: The party requesting the audit under this section 2A shall pay
all of the costs thereof, unless the audit results in an adjustment to amounts
due to or from the other party in excess of ten percent (10%) of the total
amount due, in which case the audited party shall pay three-quarters of the
costs thereof.


 


Article Three

Article Three Use of Service


 


3.1          Regulatory matters:


 


(a)           Lawful
purposes: PNC and its customers shall utilize the Service only for lawful
purposes and in compliance with all applicable rules, policies, and regulations
of the FCC and those of any other Federal, State, or local governmental bodies.


 


(b)           Relationship
to FCC: All MSS provided by Motient, including the Service as provided
under this Agreement, is subject to applicable law, including FCC rules and
regulations. PNC hereby consents to the filing of this Agreement with the FCC
if required by applicable law and


 

















 


regulation.  Motient
shall advise PNC in advance of such a filing. 
Without limitation, this Agreement is contingent upon receipt of any
necessary approvals and authorizations of the Federal Communications
Commission. The parties will cooperate to seek such approvals and coordination,
provided that Motient will be responsible for frequency coordination. However,
nothing in this Agreement shall be construed to effectuate an unauthorized
transfer of control of Motient’s licensed facilities to PNC. Motient remains
responsible for control of those facilities under FCC rules and must itself
file for any license renewals or other regulatory approvals.


 


(c)           Allocation
of capacity: PNC acknowledges and agrees that (i) MSS capacity, including
the Service, is finite and will be made available to Motient’s customers,
including PNC, on a first-come, first-served basis, subject to the availability
of MSAT capacity, and (ii) Motient reserves the right, in its sole discretion,
to allocate satellite capacity among all of its services.


 


3.2          Preemption,
interruption, or suspension of Service:


 


(a)           Emergency
Preemption:  PNC’s or its customers’
use of the Service may be preempted, interrupted or suspended due to
conditions, or for reasons, beyond Motient’s control (“Emergency Preemption”),
including but not limited to maintenance requirements or emergency conditions
experienced by Motient; to protect Motient’s personnel, facilities or services;
to provide priority and preemptive access to Motient’s satellite system as
required by the U.S. Coast Guard; to provide responsive emergency support
during any natural or man-made disasters.


 


(b)           Notice
to PNC:  In the event of Emergency
Preemption, Motient shall notify PNC soon as practicable and shall use its best
efforts to restore service as quickly as practicable.


 


(c)           Scheduled
maintenance: The use of the Service may be interrupted due to scheduled.
maintenance, subject to advance notice to PNC. Motient will use its best
efforts to provide as much notice as reasonably possible of scheduled maintenance.


 


3.3          Service credits:


 


(a)           Motient
will grant to PNC a service credit in the event of Service outages, including
outages caused by Emergency Preemption, as set forth in this section 3.3. No
service credit will be granted where the Service is interrupted or unavailable
due to the negligence of PNC or to the failure of facilities and equipment
provided by PNC or its other communications providers.


 


(1)           PNC
shall accrue credit for future Service in an amount equal to the actual period
of time for which the Service is completely unavailable for a period of one
hour or more. Motient shall maintain a log of all such service credits and
shall grant a credit to PNC on the next quarterly summary provided to PNC
pursuant to section 2.1(c) above, The amount of such Service credit shall be
determined by reference to the difference between (i) the amount of Service
capacity then requested to be used by PNC (“Active Capacity”) and (ii) the
Service capacity actually provided to PNC, for every 24 hour period during which
such Service outage or other deficiency existed. The Service credit amount will
be based on the price per Watt and the price per Kilohertz set forth in section
2.1(a) above, divided by 365 days.


 

















 


(2)           Where
the Service remains available but is modified or restricted so as to affect
adversely the Service for a period of 24 hours or more, Motient shall provide a
credit allowance for future Service. The parties shall negotiate an appropriate
credit based on the extent and duration of such modification or restriction
hour. [*]


 


(3)           No
credit allowance will be given where the Service is preempted, interrupted,
suspended, modified, or restricted for a period of less than one (1) hour.


 


(b)           The
liability of Motient for any interruption of the Service shall in no event
exceed the credit allowance provided for in this section 3,3. except for such
credit allowance, Motient shall not be liable to PNC for any loss or damage
incurred by reason of or incidental to any delay or interruption of the
Service.


 


(c)           To
the extent PNC has a credit allowance remaining when the Initial Term or any
extensions or renewals thereof expire, Motient shall monetize and refund such
credits within 90 days; provided, that if PNC has actually used the entire
Capacity Limit, it shall not be entitled to any refund for remaining Service
credits.


 


3.4          Warranty:


 


(a)           Motient
warrants that the Service will operate in accordance with the standards set
forth in the document entitled “Service Level Commitments and Escalation
Procedures” attached as Exhibit A to this Agreement. The commitment with
respect to network availability set forth in such document shall be measured on
a rolling twelve (12) month basis. The foregoing warranties are subject to PNC
utilizing the Service in accordance with Motient’s published user manuals and
operational guidelines which are made available to all of its private network
customers and resellers.


 


(b)           EXCEPT
AS OTHERWISE PROVIDED IN THIS AGREEMENT, MOTIENT MAKES NO WARRANTY REGARDING
THE PROVISION OF THE SERVICE, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


 


3.5          Limitation of
liability:


 


(a)           In
no event will either party be liable for any indirect, consequential, or
special damages, or for any lost profits, even if advised of the possibility of
the same. In no event will Motient be responsible for the failure of PNC and/or
its equipment and/or service suppliers to perform their respective
responsibilities. Without limiting the foregoing, Motient shall in no event be
liable for:


 


(1)           Any
act or omission of PNC or any defect or malfunction in any equipment or
services provided or used by PNC or its service and/or equipment suppliers; or


 












* Confidential
information.  Information has been
redacted.


 

















 


(2)           Unlawful
or unauthorized use of Motient’s facilities and services caused by the
negligence or willful misconduct of PNC and/or PNC’s customers;


 


(3)           Libel,
slander, infringement of copyright, or any other claim based on message content
arising from or in connection with messages transmitted via the Service, unless
the libel, slander or infringement results solely from the gross negligence or
willful misconduct of Motient; or


 


(4)           The
unauthorized access to, or alteration, theft, or destruction of data and/or information
of PNC by any person, whether through accident or fraudulent means or devices,
whether caused by interruption, errors, defects, delays in operation, failure
of performance, unless caused solely by the gross negligence or willful
misconduct of Motient; or


 


(5)           Any
claim arising out of a breach in the privacy or security of communications
transmitted over Motient’s facilities unless such breach arises out of the
gross negligence or willful misconduct of Motient;


 


(6)           Changes
in any of Motient’s facilities, operations or procedures required by any other
governmental authority or entity which render any facilities or services
provided by Motient or PNC obsolete, or require material modification or
alteration of PNC’s facilities or services, or otherwise affect their use or
performance.


 


(b)           Motient’s
liability for any other damages asserted by PNC under this section 3.5 or under
section 3.6 shall be limited to PNC’s actual damages due to Motient’s
negligence or willful acts and shall in no event exceed $[*] per occurrence,
excluding any Service credits as provided in section 3.3 of this Agreement.


 


(c)           To
the extent that any Service or facilities provided hereunder are provided by
third parties pursuant to arrangement with Motient, the disclaimer of or
limitations on Motient’s liability, as stated in this section 3.5, shall extend
fully to such third parties.


 


(d)           PNC
recognizes that Motient may, from time to time, obtain satellite capacity for
PNC from TMI Communications and Company, Limited Partnership (“TMI”) the
authorized provider of mobile satellite service in Canada. PNC agrees that, in
such event, TMI and its officers, directors, employees, shareholders, partners,
investors and agents shall not be liable, for any reason whatsoever, whether in
contract or tort or under any other theory of law, for damages related in any
way to the provision of the Service hereunder arising out of an act or omission
of TMI or resulting from the use of services under this Agreement, including
but not limited to any fault in TMI’s MSAT which results in failure to
establish service, delays, in-service interruption, degradation or loss or
distortion of services.


 


3.6          Indemnification:


 


(a)           Motient
shall in no event be liable to PNC, and provided that Motient complies with the
provisions of paragraph (b) of this section 3.6, PNC shall indemnity and hold
harmless Motient against loss and/or liability for any of the following,
subject to the limitation set forth in the first sentence of section 3.5(a) of
this Agreement and subject to a cap of $[*] per occurrence, excluding any
prepayment or invoice obligation:


 












* Confidential information. Information has been
redacted. 


 

















 


(1)           The
content or addressing of any message transmitted by PNC or any claim of libel,
slander, or infringement of copyright against Motient arising from or in
connection with the transmission of messages via the Service unless the libel,
slander or infringement results solely from the gross negligence or willful
misconduct of Motient; or


 


(2)           Any
intentional misconduct or gross negligence of any other entity furnishing
products or services, not authorized by Motient, which are used by PNC in
connection with the Service; or


 


(3)           no
infringement of patents, trademarks or copyrights currently filed, arising from
the combination or use of Motient-provided facilities with facilities or
services provided by PNC or any other entity acting on PNC’s behalf or at PNC’s
request, including PNC’s service and/or equipment vendors; or


 


(4)           any
loss, liability, damage, or expense caused to Motient and/or its facilities by
the negligence or willful acts or omissions of PNC and by its users, equipment
and/or service vendors.


 


(b)           Motient
shall promptly notify PNC in writing of any claim, action or suit asserted
against Motient based upon the events specified in paragraph (a) of this
section 3.6 and shall reasonably . cooperate with PNC in the defense thereof.
PNC shall, at its expense and using counsel acceptable to Motient, resist and
assume responsibility for the defense of such litigation, provided that Motient
may, at its sole expense, participate in the defense of any such claim, action
or suit. PNC shall have the right to control the defense and any settlement of
such claim, action or suit. PNC shall pay all expenses and satisfy all
judgments, including reasonable attorneys’ fees and litigation expenses, which
may be incurred by or rendered against Motient in connection therewith.


 


(c)           PNC
shall in no event be liable to Motient, and provided that PNC complies with the
provisions of paragraph (a) of this section 3.6, Motient shall indemnify and
hold harmless PNC against loss and/or liability for any of the following,
subject to the limitations set forth in section 3.5(a).,


 


(1)           Any
intentional misconduct or gross negligence of any other entity furnishing
products or services, not authorized by PNC, which are used by Motient in
connection with the Service that is provided to PNC; or


 


(2)           any
loss, liability, damage, or expense caused to PNC and/or its facilities by the
negligence or willful acts or omissions of Motient and by its equipment and/or
service vendors in connection with their provision of equipment or services to
Motient for the Service.


 


(d)           PNC
shall in no event be liable to Motient, and Motient shall, without limitation,
indemnify and hold harmless PNC against loss and/or liability for infringement
of currently filed patents, or trademarks, or copyrights arising from the
combination or use of PNC-provided facilities with facilities or services
provided by Motient or any other entity acting on Motient’s behalf or at
Motient’s request, including Motient’s service and/or equipment vendors.


 

















 


(e)           PNC
shall promptly notify Motient in writing of any claim, action or suit asserted
against PNC based upon the events specified in paragraphs (c) and (d) of this
section 3.6 and shall reasonably cooperate with Motient in the defense thereof.
Motient shall, at its expense and using counsel acceptable to PNC, resist and
assume responsibility for the defense of such litigation, provided that PNC
may, at its solo expense, participate in the defense of any such claim, action
or suit. Motient shall have the right to control the defense and any settlement
of such claim, action or suit. Motient shall pay all expenses and satisfy all judgments,
including reasonable attorneys’ fees and litigation expenses, which may be
incurred by or rendered against PNC in connection therewith.


 


(f)            Insurance:
Both parties shall maintain at all times during the term, including any Renewal
Term, of this Agreement (i) Worker’s Compensation insurance as prescribed by
the law of the states) in which either party is located; (ii) employer’s
liability insurance with limits of at least $300,000 for each occurrence; (iii)
comprehensive automobile liability insurance if the use of motor vehicles is
required, with limits of at least $1,000,000 combined single limit for bodily
injury and property damage for each occurrence; (iv) Commercial General
Liability (“CGL’) insurance, including Blanket Contractual Liability and Broad
Form Property Damage, with limits of at least $1,000,000 combined single limit
for bodily injury and property damage for each occurrence; and (v) and umbrella
excess liability policy. All liability and CGL insurance shall designate
Motient and its affiliates as an additional insured. All such insurance must be
primary and required to respond and pay prior to any other available coverage,
and shall be with an insurance carrier having an A.M. Best rating of at least
A-VII.


 


3.7          Force majeure:


 


Neither party shall be liable for any failure of
performance due to causes beyond its control, including, but not limited to,
acts of God, fires, floods or other catastrophes; national emergencies,
insurrections, riots or wars; strikes, lockouts, work stoppages or other labor
difficulties; and any law, order, regulation or other action of any governing
authority or agency thereof.


 


Article Four

Termination and Remedies


 


4.1          Termination by
Motient:


 


Motient may suspend or terminate the provision of the
Service hereunder to PNC and/or terminate this Agreement without any liability
of Motient to PNC or any third party in the event of a default by PNC. PNC
shall be deemed to be in default under any of the following circumstances:


 


(a)           PNC
fails to pay all undisputed charges hereunder, including, without limitation,
all charges based on the Minimum Annual Take Rates, within fifteen (15) days
after receipt of notice from Motient that the same are overdue;


 


(b)           Any
court, administrative agency, or other governmental authority having
jurisdiction over PNC finds that PNC’s use of the Service is in violation of
any statute or law or of any order, rule or regulation of any Court, agency or
government authority, and such violation is not


 

















 


corrected as soon, as possible, but in no event more
than thirty (30) days after written demand therefor is received by PNC from
Motient;


 


(c)           The
use of the Service by PNC, or its customers, or equipment and facilities
provided by PNC under this Agreement which are not operated in accordance with
Motient’s procedures as notified to PNC in writing, interfere with the Service
or Motient facilities or the provision of the Service to other of Motient’s
customers, and such interference or harm is not corrected immediately upon the
written demand of Motient, or, if such interference or harm is not susceptible
of immediate cure, if PNC does not immediately commence and diligently work to
correct such interference and harm, which must, in any event, be corrected
within two (2) business days after receipt of notice from Modem; or


 


(d)           PNC
or any of PNC’s customers uses an unauthorized mobile terminal (i.e., a mobile
terminal that has not been FCC type approved and Motient network certified) or
a mobile terminal which has been modified without the prior approval of
Motient, in any call using the Service, and such use is not stopped within as
soon as reasonably possible, but in no event more than twenty four (24) hours
after written demand therefor is received by PNC from Motient, or if such use
is repeated by PNC or such customer at any time after such 24-hour period
provided, however, that PNC shall not be deemed to be in default under this
paragraph (d) if PNC has terminated or authorized the termination of such
customer’s use of the Service; or


 


(e)           PNC
makes an unauthorized assignment of its rights, duties and/or obligations under
this Agreement.


 


(f)            Termination
under this section 4.1 shall be effective immediately upon receipt by PNC of
written notice of default, or at the end of such period as Motient may grant
for cure of the default.


 


4.2          Termination by either
party:


 


Either Motient or PNC (the “Terminating Party) may
terminate this Agreement and the use of the Service hereunder without any
liability to the other or, in the case. of a termination by Motient to any
third party, if the other party (the “Defaulting Party”) is in default of the
provisions of this Agreement. For purposes of this section 4.2, a default shall
be any of the following:


 


(a)           the
Defaulting party dissolves or liquidates, or transfers all or substantially all
of its assets to another person or entity otherwise than as permitted under
section 5.2 of this Agreement; or


 


(b)           the
Defaulting Party becomes the subject of voluntary or involuntary bankruptcy,
insolvency, reorganization or liquidation proceedings, makes an assignment for
the benefit of creditors, or admits in writing its inability to pay its debts
as they mature, or a receiver is appointed or any of its assets or properties,
and the same is not dismissed, vacated, or stayed within ninety (90) days; or


 


(c)           the
Defaulting Party fails to perform or observe in all material respects and in a
timely manner any term, condition, or covenant to be performed by it under this
Agreement, the breach of which is not the subject of a separate provision in
this Article 4, within thirty (30) days after receipt of written notice
describing such failure in reasonable detail, provided, however, that if


 

















 


such failure is not reasonably susceptible of cure
within thirty (30) days, it shall not be a breach hereunder if such party
promptly commences and diligently pursues a cure, reasonably acceptable to the
Terminating Party, of such failure; or


 


(d)           the
Defaulting Party provides any information to, or makes any representations or
warranties to, the other in connection with the Service, or otherwise in
connection with any information required to be provided by it hereunder, was
known by the Defaulting Party to have been false or misleading in any material
respect as of the date provided or made.


 


(e)           Termination
under this section 4.2 shall be effective immediately upon receipt by the
Defaulting Party of written notice of default, or at the end of such period as
the Terminating Party may grant the cure of the default,


 


4.3          Other remedies:


 


(a)           Termination
for default:  If the provision of
Service under this Agreement is terminated for default, as described in section
4.1 or 4.2 of this Agreement, the Terminating Party shall be entitled to
exercise all remedies which maybe available to it, either at law or in equity,
or both.


 


(b)           Other
termination:  Upon any termination
of the Agreement by PNC due to Motient’s default in accordance with Section 4.2
above, Motient promptly shall refund or return to PNC, as appropriate, the
prepayments described in section 2.1 above and/or all deposits, letters of
credit and other forms of security provided by PNC and any Service credit
balance, less only such amounts as are due for use of the Service before
termination and such other amounts as Motient reasonably shall determine are
due and owing, or will become due and owing, from PNC.


 


(c)           Immediate
payment:  In addition to any other
rights or remedies available to Motient under this Agreement or otherwise,
Motient may demand immediate payment of all undisputed amounts billed and
payable at the time of the termination, as well as any other amounts due
hereunder, (1) if the Service is terminated by Motient pursuant to section 4.1
or 4.2 of this Agreement, (2) if PNC is delinquent in the payment of any
invoice beyond any applicable grace period, or (3) if Motient has reason to
believe that PNC is about to cease operations or go out of business or about to
seek protection under any applicable bankruptcy or reorganization laws.


 


(d)           Actions
upon termination:  Upon termination
of this Agreement for any reason, PNC shall promptly, but in no event later
than 30 days after termination, remove all of its equipment from Motient’s
facility.


 


4.4          Regulatory approvals:


 


If (a) Motient fails to obtain and maintain all
required and material FCC or other government approvals for the provision of
the Service in Motient’s authorized territory as described in this Agreement or
(b) a final order of the FCC, or other government agency having jurisdiction,
revoking or denying renewal of the MSS authorization granted to Motient is
issued and becomes effective, PNC may, in its sole discretion, terminate this
Agreement in its entirety or to the extent or in the geographic areas where
PNC’s use or provision of the Service is affected by Motient’s failure or such
final order. If PNC terminates this Agreement in its entirety, then 


Motient shall


 

















 


refund all PNC balances; if PNC terminates this
Agreement in part, then Motient shall refund a pro rata share of PNC balances
corresponding to the terminated portion of this Agreement.


 


Article Five

General


 


5.1          Representations and
warranties:


 


Each party represents and warrants to the other that –


 


(a)           it
is fully authorized to enter into and perform this Agreement; this Agreement
when executed, will be binding upon it; and it has made no misrepresentations
to the other party in connection with the negotiation, execution, or
performances of this Agreement; and


 


(b)           the
execution and performance of this Agreement does not and will not violate any
other contract, obligation, or instrument to which it is a party, or which is
binding upon it, including terms relating to covenants not to compete and
confidentiality obligations.


 


5.2          Assignment:


 


(a)           Motient:
Motient shall have the right to assign this Agreement, including its rights and
obligations under this Agreement, without consent of PNC, to such person or
entity who shall from time to time hold the FCC license pursuant to which the
Service is authorized. Without limiting the generality of the foregoing,
Motient may, without PNC’s prior consent, assign its rights and obligations
under this Agreement to Motient Satellite Ventures LLC (or its successor)
(“MSV”), pursuant to the transfer by Motient of its satellite communications
business, as a whole, to MSV as contemplated by that certain Asset Sale
Agreement, dated June 29, 2000, by and between Motient and MSV; [*] Motient
shall also have the unrestricted right to assign this Agreement, or any of its
rights hereunder, upon written notice to PNC, to any lender as collateral
security in connection with any financing arrangement of Motient, provided that
Motient shall remain responsible for performance of its responsibilities
hereunder.


 


(b)           PNC:  PNC shall not assign any of its rights and
obligations under this Agreement to any other person, firm, agency, corporation
or other legal entity, except its affiliates, without the prior written
approval of Motient, which shall not unreasonably be withheld, conditioned, or
delayed.


 


5.3          Successors and
assigns:


 


This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their permitted assigns. This
Agreement is entered into solely for the benefit of such parties. Nothing
herein contained will be deemed to create any third party beneficiaries or
confer any benefit or rights on or to any person not a party hereto, and no
person not a party hereto shall be entitled to enforce any provisions hereof or
exercise any rights hereunder.


 












* Confidential Information. Information has been
redacted. 


 

















 


5.4          No third Party
beneficiaries:


 


PNC shall be solely a value-added reseller of the
Service purchased from Motient, and the provision by Motient to PNC of the
Service is not part of any principal and agent relationship, employer and
employee relationship, or joint venture or partnership between Motient and PNC.
This Agreement is entered into solely for the benefit of Motient and PNC and is
for the exclusive benefit of such parties. Nothing contained in this Agreement
will be deemed to create any third party beneficiaries or confer any benefit or
rights on or to any person not a party hereto, and no person not a party hereto
(including without limitation customers, vendors, or creditors of PNC) shall be
entitled to enforce any provisions hereof or exercise any rights hereunder


 


5.5          Notices:


 


(a)           All
notices and other communications hereunder shall be given in writing and shall
be deemed to have been duly given and effective (1) upon receipt if delivered
in person or by facsimile, (2) one (1) day after deposit prepaid with a
national overnight express delivery service; or (3) three (3) days after
deposit in the United States certified mail, postage prepaid, return receipt
requested:


 


If to PNC:


 


Aether Systems, Inc.

11460 Cronridge Drive

Owings Mills, MD 21117


 


Attn:               Michael Pesto,
Manager of Carrier Relations, Wireless Services Division

Phone:            (410) 654-6400, x5297

Facsimile:       (410) 654-6554

Email:              mbpesto@aethersystems.com


 


If to Motient:


 


Motient Services Inc.

10802 Parkridge Boulevard

Reston, VA 20191-5416


 


Attention: Vice President, Corporate Account Sales

Attention:              Manager,
Contracts

Facsimile: 703/758-6134

With a copy to the General Counsel, Motient, at the above address.


 


(b)           Each
party may designate by notice, delivered as described in paragraph (a) of this
section 5.5, a new address (or substitute or additional persons) to which any
notice, demand, request or communication may thereafter be so given, served or
sent.


 

















 


5.6          Applicable law:


 


THIS AGREEMENT, AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN ACCORDANCE WITH AND
SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. PNC AGREES THAT ANY AND
ALL CAUSES OF ACTION, WHETHER OR NOT ARISING UNDER THIS AGREEMENT, BETWEEN THE
PARTIES SHALL BE BROUGHT EXCLUSIVELY IN THE CIRCUIT COURT OF FAIRFAX COUNTY,
VIRGINIA, OR IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.


 


5.7          Waiver and
severability:


 


(a)           Neither
the waiver by either of the parties hereto of a breach of or a default under
any of the provisions of this Agreement, nor the failure of either of the
parties, on one or more occasions to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder shall thereafter be
construed as a waiver of any subsequent breach of default of a similar nature,
or as a waiver of any provisions, rights, or privileges hereunder. Any waiver
under this Agreement must be in writing.


 


(b)           In
the event that any one or more of the provisions of this Agreement shall be
held by a court of competent jurisdiction to be invalid or unenforceable in any
respect, such invalidity and unenforceability shall not affect any other
provision of this Agreement, and the Agreement shall be construed as though
such invalid and/or unenforceable provision(s) had never been contained herein.


 


5.8          Confidentiality:


 


(a)           Each
party agrees that it will not disclose the other’s confidential information and
trade secrets, including but not limited to data, software, documentation,
client names and addresses, and all other proprietary information, to persons
other than its employees and subcontractors who are required to have such
information for the furtherance of the purposes of this Agreement provided that
such employees and subcontractors must be bound by an obligation of
confidentiality that is no less restrictive that that contained in this
Agreement. Each party shall take all steps reasonably necessary to protect the
confidential information of the other party from unauthorized disclosure. This
obligation of confidentiality shall survive the termination of this Agreement.
Upon termination of this Agreement, the receiving party shall return or destroy
the disclosing party’s confidential information, at the request of the
disclosing party.


 


(b)           Nothing
in this Agreement shall cause either party to have any rights or licenses in
any inventions, patents, trade secrets, trademarks end/or copyrights of the
other relating to the subject matter of this Agreement.


 


5.9          Modification:


 


No amendment or modification to this Agreement shall
be valid unless made in writing and signed by the authorized representatives of
the parties. As to Motient, the “authorized representatives” means both
Motient’s (a) General Counsel and (b) Chief Executive Officer, President, or
any Vice President.


 

















 


5.10        Headings:


 


The headings and numbering of paragraphs in this
Agreement are for convenience only and shall not be construed to define or
limit any of the terms herein or affect the meaning of interpretation hereof.


 


5.11        Entire agreement:


 


This Agreement, including all Appendices hereto,
constitutes the entire agreement between the parties hereto and supersedes all
prior oral or written agreements, representations, statements, negotiations,
understandings, proposals, and undertakings with respect to the subject matter
hereof.


 


IN WITNESS WHEREOF, THE PARTIES HAVE
ENTERED INTO THIS PRIVATE NETWORK SATELLITE SERVICES AGREEMENT, EFFECTIVE AS OF
THE DATE FIRST WRITTEN ABOVE.


 

















 


	
  MOTIENT SERVICES INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  AETHER SYSTEMS,INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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EXHIBIT A


 


Service Level
Commitments and Escalation Procedures


 


Operations and Maintenance Responsibility - Motient
will be responsible for providing the appropriate power and bandwidth to
support Aether authorized carriers. All Aether carriers will be documented by
Motient approved Carrier Transmission Authorization forms. Motient will provide
an RF system availability (includes ground system and satellite) of 99.98% In
the event that it becomes necessary to schedule downtime for the satellite or
the RF ground system, Aether will be notified at least 24 hours in advance. In
most cases, scheduled downtime will take place on a Sunday morning between the
hours of 0200L to 0600L (ET). If 24 hour advanced notification is not possible,
Aether will be notified as soon as possible before the event. Unscheduled outage
information will be passed to the on duty Aether technician as it becomes
available.


 


Motient is responsible for operating and maintaining
all RF/IF equipment and cabling from the 70 MHz Input/Output ports on the back
of ti LES equipment racks out through the Ku and L-Band Satellite RF systems.
Aether is responsible for operating and maintaining all equipment and cabling
prior to this juncture.


 


Escalation -
Normally all questions/problems will be referred to the on duty Satellite/RF
Operations Technician. The on duty technician is responsible for providing the
first level of operations and maintenance support and for; escalating problems
within Motient. This includes providing information back to the Aether on duty
technician. If resolution is not achieved within 15 minutes, the problem will
be escalated W the following order:


 


	
  On
  Duty Satellite/RF Operations Technician

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  Satellite/RF
  Operations Lead Technician

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  Satellite/RF
  Operations Manager

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  VP,
  Operations

  	
   

  	
  [*]

  	
   

  	
  [*]

  



 


All routine information about events that affect
Aether systems/traffic will normally flow from the on duty Motient Satellite/RF
Operation Technician to the on duty Aether technician.


 












* Confidential information. Information has been redacted. 


.