Exhibit
10.7


 


TERRESTRIAL
NETWORK RESELLER AGREEMENT


 


THIS TERRESTRIAL NETWORK RESELLER AGREEMENT (the
“Agreement”) is entered into as of November 29, 2000, between Aether Systems,
Inc., a Delaware corporation, with offices at 11460 Cronridge Drive, Owings
Mills, Maryland, 21117 (“Aether Systems”) and Motient Communications Company
(“Motient”), a New York general partnership and wholly owned subsidiary of
Motient Corporation, with offices at 10802 Parkridge Boulevard, Reston,
Virginia, 20191-5416.


 


WHEREAS, Motient is engaged in providing shared
radio-based data communications network services over a terrestrial network, as
authorized by the U.S. Federal Communications Commission; and


 


WHEREAS, Aether Systems currently provides certain
software and other value added services in the wireless communications
marketplace; and


 


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


 


WHEREAS, the Asset Sale Agreement contemplates that
Motient and Aether Systems will enter into this Agreement for the purpose of
enabling Aether Systems to resell the Services (as defined below) in connection
with (i) Aether Systems’ assumption of the Transportation Business pursuant to
the Asset Sale Agreement, (ii) Aether Systems authorized resale of Motient’s
eLink (SM) wireless email service, (iii) Aether Systems’ authorized resale of
Research in Motion’s BlackBerry wireless MS Exchange email service on the
Motient network (“BlackberryTM by Motient”), and (iv) Aether Systems’ possible
resale of the Services in connection with other value added applications and
service offerings in the wireless communications marketplace that Aether
Systems may develop and/or offer in the future; and


 


WHEREAS, Motient desires to provide, and Aether
Systems desires to resell, the Services, subject to the terms and conditions
hereof.


 


NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:


 


1.             DEFINITIONS - For purposes of this
Agreement:


 


(a)           “Market”
shall mean all commercial, non-governmental non-users of Services.


 


(b)           “FCC”
shall mean the United States Federal Communications Commission.


 


(c)           “Prices”
shall mean the prices set forth in Attachment A (which is hereby
incorporated by reference).


 

















 


(d)           “Service”
or “Services” means Motient’s shared terrestrial radio-based data
communications network service, operating in the 800 MHz frequency band, which
enables a user to access and communicate wirelessly with various third party
supplied information sources, or with certain subscribers using the MotientSM
wireless terrestrial network.  The
Service includes the use of the Motient message switches and related network
software when accessed by user procured terminals and compatible software.


 


(e)           “Territory”
shall mean the United States and any other countries or jurisdictions where the
Services are or may be provided by Motient in accordance with legal and
applicable legal and regulatory requirements.


 


2.             SCOPE OF AGREEMENT


 


Motient hereby agrees to establish a non-exclusive
resale relationship with Aether Systems as follows:


 


(a)           Motient
hereby licenses Aether Systems (1) to be a non-exclusive reseller of the
Services within the Market and Territory, (2) to be a non-exclusive reseller of
Motient’s eLink (SM) wireless email service within the Market and Territory,
which service is described in Attachment B, and (3) to be a
non-exclusive seller of the BlackBerryTM by Motient wireless email service
within the Market and Territory, which service is described in Attachment C.  Aether Systems may enter into agreements
with subagents as set forth in section 3(d) of this Agreement. Except with
respect to the Transportation Business, and subject to the terms contained in
the Asset Sale Agreement with respect thereto, (i) Aether Systems acknowledges
that Motient reserves the right to market and provide the Service directly to
end users and to license other resellers within the Market and Territory, and
(ii) Motient acknowledges that Aether Systems reserves the right to use airtime
on other wireless networks to provide services to end user customers.


 


(b)           Aether
Systems shall develop and implement a non-exclusive, non-binding joint
marketing plan to facilitate the resale of one or more of the Services by
Aether Systems.  Such marketing plan may
include, without limitation:


 


(i)            joint
development of product literature describing the Services and their
capabilities;


 


(ii)           joint
attendance at trade shows, conferences and related events within the
marketplace;


 


(iii)          joint presentations to prospective clients of
the Services;


 


(iv)          joint
press releases, advertising and participation at the Motient booth at certain
trade shows;


 


(v)           joint
marketing projections for the Services;


 


2

















 


(vi)          joint
development activities with terminal hardware vendors;


 


(vii)         previews of Motient’s future technology and
business plan;


 


(viii)        at Aether Systems’ option, the plan also may
include joint marketing plans for the eLink (SM) and BlackBerryTM by Motient
services.


 


(c)           In
connection with the foregoing joint marketing plan, each party may use the
trademarks and service marks of the other party; provided, that any such
use is strictly conditioned on the prior written approval of the owner of such
marks, and on the user’s compliance with any and all usage guidelines
established by the owner of such marks.


 


(d)           Aether
Systems and Motient agree not to publish or use advertising, sales promotions
or any publicity matters using the other party’s name, including the mention of
the existence of this Agreement, without the prior written consent of the other
party, which consent will not be unreasonably withheld; provided, that
each party may, with the advice of counsel, make such public disclosures of this
Agreement as may be necessary to ensure such party’s compliance with its
federal securities law obligations.


 


3.             AETHER SYSTEMS
MARKETING AND DEVELOPMENT OBLIGATIONS


 


(a)           Aether
Systems shall be responsible for ensuring that all users to whom it remarkets
the Services are, if required by applicable law or regulation, licensed by the
FCC prior to use of the Services. 
Motient shall, however, provide reasonable administrative and
consultative support, consistent with that provided to Motient’s other resellers,
to Aether Systems to facilitate any required licensing process.


 


(b)           In
addition to the general reseller responsibilities that are set forth in Attachment
D to this Agreement (which is hereby incorporated by reference), Aether
Systems agrees, with respect to its reselling of eLink (SM) and BlackBerryTM
by Motient:


 


(i)            To
provide its own internet domain for E-mail connectivity for end-users
registered by Aether Systems;


 


(ii)           To
be responsible for end user registration and for providing Motient with the
following information for each end user registered by Aether Systems:


 


BIN number, LLI number, and Internet mail address,
which Motient agrees it will treat in accordance with Motient’s published
privacy policies applicable to its customers and end users of its network and
Services, as in effect horn time to time.


 


(iii)          With respect to Aether Systems’ remarketing
of BlackBerryTM by Motient, to comply with all of the terms and conditions
imposed by Research in Motion Limited (“RIM”) that are applicable to resellers
and sub-resellers of such service, including, but not limited to, the use and
reproduction of


 


3

















 


RIM trademarks, service marks and logos.  The current version of such branding guidelines are attached to
this Agreement as Attachment E. 
Such guidelines may change from time to time; Motient will use its best
efforts to forward promptly to Aether Systems copies of any revisions to such
guidelines that Motient receives from time to time from RIM.


 


(c)           In
the performance of its rights and obligations under this Agreement, Aether
Systems may at its option enter into agreements with subagents subject to the
following:


 


(i)            Subagents
shall be subject to all applicable provisions of this Agreement, and Aether
Systems shall require of its subagents in writing that its subagents’ actions
are in compliance with the terms and conditions of this Agreement, and shall be
responsible for the acts or omissions of its subagents relative to the Service;
and


 


(ii)           Aether
Systems shall provide Motient upon request with any further information
regarding a subagent that Motient reasonably deems necessary to permit Motient
to assure itself that the provisions of this section 3(c) are being met; and


 


(iii)          Actions by any subagent about which Aether
Systems knew or reasonably should have known in advance that result in a breach
by Aether Systems shall not be deemed to be beyond the reasonable control of
Aether Systems; and


 


(iv)          Aether
Systems’ payment arrangements with subagents shall be the sole responsibility
of Aether Systems and Motient shall have no responsibility or obligation to
compensate subagents; and


 


(v)           With
respect to Aether Systems’ resale of BlackBerryTM by Motient, the resale of such
service by any subagent of Aether Systems must be approved in advance, in
writing, by Motient and by Research in Motion; and


 


(vi)          Motient
reserves the right to request that Aether Systems terminate a subagent’s right
to market or promote the Service or sell or service data terminals, who has
violated the provisions of items (i), (ii), (iii) and/or (v) of this paragraph
3(c).


 


4.             LIMIT ON AMOUNT OF
AIRTIME TO BE PROVIDED


 


During the term of this Agreement, the maximum
cumulative amount of Services that Motient is obligated to provide to Aether
Systems pursuant to this Agreement, as measured in Kilobytes consumed, is [*]
data (the “Capacity Limit”).  All
Service used by Aether Systems will count against the Capacity Limit,
including, but not limited to, Service consumed in connection with (i) Aether
Systems’ assumption and provision of the Transportation Business pursuant to
the Asset Sate Agreement, (ii) Aether Systems’ authorized resale of Motient’s’
eLink (SM)


 












* Confidential
information.  Information has been
redacted.


 


4

















 


wireless email service and BlackberryTM by Motient, and
(iii) Aether Systems’ possible resale of the Services in connection with other
value added applications and service offerings in the wireless communications
marketplace that Aether Systems may develop and/or offer in the future.  Motient has no obligation to provide Service
in excess of the Capacity Limit, but it may choose to do so in response to
Aether Systems’ request, on terms and conditions satisfactory to Motient in it
sole discretion.  Motient shall provide
Aether Systems with monthly reports showing the number of kilobytes of data
used by Aether Systems in the prior month.


 


5.             PRICING AND PAYMENT


 


(a)           Aether
Systems will pay Motient for the Services at the rates set forth in Attachment
A to this Agreement, which is incorporated herein by reference.


 


(b)           Aether
Systems agrees to pay Motient a per month, per user license fee, for each end
user registered by Aether Systems of Motient’s eLink service, and BlackBerryTM
by Motient, at the rates set forth in Attachment A.  In exchange for such payment, Motient grants
Aether Systems and the applicable end user a non-exclusive, non-transferable
license to use, but not reproduce, distribute or modify, the software delivered
with the eLink and/or BlackBerryTM Motient service, as applicable.  The foregoing license is granted by Motient
insofar as Motient owns or otherwise has the right to license such
software.  Such license is granted to
Aether Systems and its end users (1) only for the purpose of accessing and
using the Service, and (2) only in the format that the software is provided to
Aether Systems and the end users.


 


(c)           Aether
Systems agrees to prepay Motient for the Services, according to the following
schedule:


 


[*]


 


The foregoing prepayments
are for all Service consumed by Aether Systems, whether in connection with (1)
Aether Systems’ assumption and provision of the Transportation Business
pursuant to the Asset Sale Agreement, (2) Aether Systems’ authorized resale of
Motient’s eLink (SM) wireless email service and BlackBerryTM by Motient, and (3)
Aether Systems’ possible resale of the Services in connection with other value
added applications and service offerings in the wireless communications
marketplace that Aether Systems may develop and/or offer in the future.  Subject to sub-section (e) below, the
foregoing prepayments shall be paid by Aether Systems, regardless of the amount
of Service theretofore consumed by Aether Systems.  The obligation of Aether Systems to make such prepayments shall
not be subject to any condition or contingency, except that credits due Aether
Systems for outages or service restrictions as set forth in section 18 may be
deducted from such prepayments (in which case such credits shall be
eliminated), and no prepayment shall be due during any service outage, in which
case prepayment shall be due on the first business day after such failure or
delay is remedied.


 












* Confidential
information.  Information has been
redacted.


 


5

















 


(d)           As
Aether System consumes Service during the term of the Agreement, Motient will
issue credits on Aether Systems’ monthly invoices against any prepayment
theretofore made by Aether Systems, at the rates described in subsection (a)
above, up to the Capacity Limit. 
Motient will provide quarterly summaries indicating the remaining
prepayment balance, the credits issued, and the specific charges against which
such credits were issued.


 


(e)           If,
during any year in the Initial Term or any extension thereof, Aether Systems
actually uses more Service than it has theretofore paid for, then Motient shall
invoice Aether Systems, at the rates described in subsection (a) above, for any
such excess usage during such year, and Aether Systems shall be obligated to
pay for such excess usage is accordance with the provisions of Section 6
below.  At the end of such year, Motient
shall issue a credit against Aether Systems’ next year’s required prepayment,
equal to the amount actually paid through such date by Aether Systems in excess
of its prior prepayment obligations. 
This process will be repeated each year, to the extent necessary.


 


6.             BILLING AND PAYMENTS


 


(a)           Aether
Systems will be responsible for billing and collection from its end user
customers for all Services, and for the eLink (SM) and BlackBerryTM by Motient
services resold by Aether Systems pursuant to this Agreement.  For all Service used, Aether Systems shall
make payment to Motient, regardless of whether it receives payment from its end
user customers.


 


(b)           Within
ten (10) days after the end of the monthly billing period, Motient will provide
Aether Systems with an electronic invoice for the previous month’s Service and
network usage information, in the format Motient generally provides to all of
its resellers, to enable Aether Systems to invoice its end user customers.


 


(c)           Motient
will invoice Aether Systems separately, on a monthly basis, for the license
fees set forth in section 5(b) above. 
For such amounts, and also with respect to Service to the extent not
covered by the prepayments described above or the credits set forth below,
Aether Systems will pay Motient’s invoices within 30 days after the date of
such invoice.  Motient reserves the
right to charge, and Reseller agrees to pay, a late charge on any undisputed
amount unpaid on or after the due date, and on any other outstanding balance,
equal to the maximum amount allowed by applicable law.


 


(d)           TAXES:  All rates set forth in this Agreement are
exclusive of Applicable Taxes, which shall be the responsibility of Aether
Systems.  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, Aether
Systems is liable for, and shall indemnify Motient from and against all
Applicable Taxes properly chargeable to Aether Systems or its customers with
respect to Motient’s provision of the Service to Aether Systems or relating to
Aether System’s purchase, use, resale, or lease of


 


6

















 


the Service to its customers or others, and/or any penalty and interest
thereon if assessed by the applicable governmental body.  Motient will invoice Aether System for such
penalties and interest, and Aether Systems shall pay such invoices in
accordance with he provisions of section 6(c) above.  Aether Systems shall not be responsible for Motient’ income tax
obligations in connection with Motient’s provision of the Service to Aether
Systems.


 


7.             RESTRICTIONS ON USE


 


Aether Systems acknowledges that Motient reserves the
right to deny service to any Aether Systems end user should the Service be used
for any purpose that Motient reasonably determines to be materially
inconsistent with the intended purpose and functionality of the Motient network.  Aether acknowledges that Motient’s network
uses “packet data” technology, and, accordingly, examples of unintended uses
include data streaming (i.e., continuous transmission of data) or file transfer
(i.e., sending files as opposed to sending shorter bursts of data and
messages).


 


8.             TERM AND TERMINATION


 


(a)           This
Agreement shall begin on November 29, 2000 and shall end on November 29, 2004
(the “Initial Term”).  At the end of the
Initial Term, the Agreement may be renewed on terms and conditions and at rates
to be agreed in writing by the parties, provided that neither party is then in
default under the Agreement. 
Notwithstanding the foregoing, if, at the end of the Initial Term,
Aether Systems has made all of the prepayments described in section 3 above,
but has not then consumed the Capacity Limit, and if Aether Systems 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 the earlier of (i)
such date that Aether Systems has used all of the Capacity Limit, and (ii) the
end of the fifth year following the date of execution of the Agreement.


 


(b)           Notwithstanding
anything to the contrary contained herein, if a party (the “breaching party”)
commits a material breach of its obligations under this Agreement, the other
party may provide to the breaching party written notice of termination of this
Agreement, which includes a description of the nature of the breach.  If the breaching party does not cure the
breach within 30 days following the date of such notice, this Agreement shall
terminate at the end of the 30 day notice period.  Aether Systems’ failure to make any payment of any undisputed sum
due under this Agreement shall be deemed a material breach and subject to this
section 8(b).  If a party dissolves or
declares bankruptcy or becomes insolvent, the other party may terminate this
Agreement immediately by providing written notice thereof.


 


(c)           In
the event of a termination by Motient due to a default by Aether Systems as set
forth in this section 8, Motient shall have the right to immediately terminate
this Agreement, retain all payments made hereunder, and deny Aether Systems,
and its customers access to the Services provided under this Agreement.  In such


 


7

















 


event, Motient shall have the right to assume Aether Systems’ contracts
with its customers, and to provide Service to such customers directly. In the
event of termination by Aether due to default by Motient, Motient promptly
shall refund or return to Aether Systems, as appropriate, any prepayments
described in section 5(c) above that have actually been paid to Motient by
Aether Systems (net of any charges for Service actually used through the date
of termination), plus any Service credit balance, less only such amounts as are
due for use of the Service by Aether Systems before termination and such other
amounts as Motient reasonably shall determine are due and owing, or will become
due and owing.  Each and all of the
rights and remedies of the parties hereunder are cumulative to and not in lieu
of each and every other such right and remedy. 
Failure or delay on the part of Motient or Aether Systems to exercise
any right, remedy, power or privilege hereunder shall not operate as a waiver
thereof.  A waiver, to be effective,
must be in writing and signed by the party making the waiver.  A written waiver of a default shall not
operate as a waiver of any other default or of the same type default on a
future occasion.


 


(d)           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
Motient’s authorization is issued and becomes effective, Aether Systems may, in
its sole discretion, terminate this Agreement in its entirety or to the extent
or in the geographic areas where Aether Systems’ use or provision of the
Service is affected by Motient’s failure or such final order.  If Aether Systems terminates this Agreement
in its entirety, then Aether Systems shall be entitled to a refund of all
prepayments actually paid to Motient (net of all charges for Service actually
used through the date of termination); if Aether Systems terminates this
Agreement in part, then Motient shall refund a pro rata share of such
prepayments corresponding to the terminated portion of this Agreement.


 


9.             AETHER SYSTEM
RESPONSIBILITIES


 


Aether Systems acknowledges and agrees to inform its
end user customers that:


 


•      100%
radio coverage for any on-street or in-building area at all times is
improbable, even, within coverage areas on Motient’s radio frequency coverage
maps;


 


•      radio
frequency coverage maps, if provided, are intended to indicate expected
coverage and are not binding as an exact representation of coverage;


 


•      uninterrupted
or error-free operation of the Services is virtually unobtainable; and


 


•      occasionally
network availability will be lost, and that neither Aether Systems nor its
underlying network provider can be responsible for transmission errors, for
corruption of data, or for the security of data during transmission via
telecommunications facilities not owned by Motient.


 


8

















 


Aether
Systems will also inform its end user customers that the end user customer
should assess the effect such Potential problems will have on their operation
and develop, implement and/or maintain procedures, external to the MotientSM
network, to safeguard their programs and data and to establish procedures for
the backup and reconstruction of lost data and programs adequate for their
protection.  Aether Systems will also
inform its end user customers that in using the Service, they are required to
(a) observe and abide by all applicable statutes, laws, ordinances, rules and
regulations including, but not limited to, those of the FCC, and (b) use the
MotientSM network and the Service on a shared basis with other end
user customers so as not to cause undue interference with any other end user
customer using the Service.


 


10.          MOTIENT RESPONSIBILITIES


 


(a)           Motient
will provide coverage maps with respect to its network through its Web
site.  Motient will post updates to
these coverage maps within sixty (60) days of any significant changes in
coverage.  Motient’s coverage maps are
based on street level coverage.  Motient
will also work with Aether Systems to provide Aether Systems with access to the
coverage maps or the underlying data in a format that will allow Aether Systems
to provide its end user customers with access to coverage map information
without directing such customers to Motient’s Web site.  Aether Systems understands that it may have
to purchase software, at its own expense, to obtain such data in Web format;
Motient agrees to assist Aether Systems in identifying such software and to
provide the data if Aether Systems obtains such software.


 


(b)           The
Service Level Commitments and Escalation Procedures set forth in Attachment
F of this Agreement are incorporated herein by reference.  As appropriate, such commitments and
procedures shall apply to eLink(SM) and BlackberryTM by Motient.


 


(c)           The
warranties regarding the availability of the Motient network set forth in Attachment
G hereto are incorporated herein by reference.


 


(d)           Aether
Systems’ programs and data, including data concerning Aether Systems’ end user
customers, that come into Motient’s custody under this Agreement will be
protected in accordance with Motient’s security procedures applicable to all
resellers of the Services and shall be treated in accordance with Motient’s
published privacy policies applicable to its customers and end users of its
network and Services, as in effect from time to time.


 


11.          FORCE MAJEURE


 


Motient and its subcontractors do not assume and shall
have no liability under this Agreement for failure to provide, or delay in
providing the Service resulting directly or indirectly from causes beyond the
control of Motient or its subcontractors including, but not restricted to, acts
of God, or governmental entities, or of the public enemy, strikes, or unusually
severe weather conditions.


 


9

















 


12.          TRAINING AND TECHNICAL
SUPPORT


 


(a)           Motient
shall make available to Aether Systems, at no charge, a commercially reasonable
level of initial training on the use of the Services and of eLink (SM) and
BlackBerryTM by Motient.


 


(b)           Motient
shall continue to provide Aether Systems, at no charge, with “second level”
technical assistance, i.e., assistance to Aether Systems with the Motient
network and the use of the Services and of the eLink (SM) and B1ackBerryTM by
Motient services by Aether Systems and/or its end user customers; provided,
the parties acknowledge and agree that all “first level” assistance, i.e.,
customer support and assistance to Aether Systems’ end user customers, shall be
the obligation of Aether Systems. 
Motient’s assistance shall include, without limitation, telephone
consultation, updates relating to changes and enhancements to the Services, and
the eLink (SM) and B1ackBerryTM by Motient services and reasonable diagnostic
services.


 


13.          THIRD PARTY LIABILITY


 


(a)           Aether
Systems warrants that it will inform its end users and subagents of the Service
of the applicable terms and conditions of this Agreement, as expressed in Attachment
H hereof (which is hereby incorporated by reference), limiting Motient’s
liability to such end users or subagents.


 


(b)           Each
party shall indemnify and hold the other party harmless from any third party
claim arising out of the gross negligence or willful misconduct of the
indemnifying party’s agents, employees or contractors.  The indemnified party shall promptly notify
the indemnifying party in writing of any claim, action, or suit asserted by
such third party, and shall reasonably cooperate in the defense thereof.  The indemnifying party shall, at its
expense, defend against such claim, provided that the indemnified party may
participate in any such defense.  The
indemnifying party shall have the right to control the defense and any
settlement of such claim.


 


(c)           Both
parties shall maintain at all times while this Agreement is in force (i)
Worker’s Compensation insurance as prescribed by the law of the state(s) 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.


 


10

















 


14.          CONFIDENTIAL INFORMATION


 


(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 than 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 and/or copyrights of the
other relating to the subject matter of this Agreement.


 


15.          INDEPENDENT RELATIONSHIP


 


Aether Systems and Motient specifically disclaim any
partnership relationship, and this Agreement shall in no way be construed to
make Aether Systems and Motient partners or members of a joint venture.  For the purposes of this Agreement, Aether
Systems and Motient shall be deemed to be independent contractors.  Furthermore, in the event Aether Systems
elects to sell the Services to the United States government, a state, local or
non-United States government, or to a contractor selling to any of the
foregoing government entities, Aether Systems does so at its own option and
risk and agrees that Motient shall have no obligation as a subcontractor or
otherwise to such government customers. 
Aether Systems remains solely and exclusively responsible for compliance
with all statutes, regulations, and clauses governing sales to any such
government customer.  Motient makes no
representations, certifications, or warranties whatsoever with respect to the
ability of its goods, or services, or prices to satisfy any such statutes,
regulations, or clauses.


 


16.          WARRANTIES


 


Motient warrants that its network is in good working
order on the date of the Agreement and conforms to Motient’s officially
published and publicly available performance information, which is attached
hereto as Attachment G.  Motient
will provide preventative and remedial service to keep its network in, or to
restore it to, good working order. 
Motient does not warrant that the Service will be uninterrupted or that
its operation will be error-free. 
Subject to the preceding sentences regarding Motient’s network, Motient
warrants that eLink (SM) and BlackBerryTM by Motient will provide functionality
substantially in accordance with the functionality of such services as
commercially publicized by Motient; provided, that Motient makes no
warranty with respect to any handheld device or other user terminal or device
used or usable with these services.


 


11

















 


17.          DISCLAIMER


 


THE FOREGOING WARRANTIES ARE IN PLACE OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


 


18.          EXCLUSIVE REMEDY


 


In the event of any failure or delay in its provision
of the Services that is attributable to the fault of Motient or its
subcontractors, or for breach of warranty, Aether Systems’ sole remedy shall be
limited to a refund of Aether Systems’ charges for the affected Services during
the time of such failure or delay; provided, that such remedy is available only
if Aether Systems reports such failure or delay to Motient within twenty-four
(24) hours of the occurrence thereof.


 


Without limiting the foregoing,


 


(a)           Motient
will grant to Aether Systems a service credit in the event of Service outages
as set forth in this section 18.  No
service-credit will be granted where the Service is interrupted or unavailable
due to the negligence of Aether Systems or to the failure of facilities and
equipment provided by Aether Systems or its other communications providers.


 


(i)            Motient
shall accrue credit for future Service to Aether Systems 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 reflect a credit to
Aether Systems on the next quarterly summary provided to Aether Systems
pursuant to section 5(d) hereof.  The
amount of such Service credit shall be determined by reference to Aether
Systems’ actual traffic (i.e., aggregate kilobytes used) on the network during
a comparable period prior to the event giving rise to the credit.  The determination of any such Service credit
shall take account of the specific geographic area in which the Service outage
is demonstrated to have occurred.  The
determination of the amount of any Service credits shall be made in Motient’s
reasonable sole discretion.


 


(ii)           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.  If the service is modified or restricted for more than 72 hours,
Motient shall provide credit for future Service as if the Service were
completely unavailable for that entire 72 hour period and for as long as it
continues, beginning in the 73rd hour.


 


12

















 


(iii)          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 18.  Except for such credit allowance, Motient
shall not be liable to Aether Systems for any loss or damage incurred by reason
of or incidental to any delay or interruption of the Service.


 


(c)           To
the extent Aether Systems 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 Aether Systems has
actually used the entire Capacity Limit, it shall not be entitled to any refund
in respect of any remaining Service credits.


 


19.          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 Aether Systems and/or its equipment and/or
service suppliers to perform their respective responsibilities.  Without limiting the foregoing, Motient
shall in no even be liable for.


 


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


 


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


 


(iii)          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


 


(iv)          The
unauthorized access to, or alteration, theft, or destruction; of data and/or
information of Aether Systems 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


 


(v)           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;


 


(vi)          Changes
in any of Motient’s facilities, operations or procedures required by any other
governmental authority or entity which render any facilities


 


13

















 


or services provided by Motient or Aether Systems obsolete, or require
material modification or alteration of Aether Systems’ facilities or services,
or otherwise affect their use or performance.


 


(b)           Motient’s
liability for any other damages asserted by Aether Systems under this section
19 and section 20 shall be limited to Aether Systems’ 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 18 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 19, shall extend
fully to such third parties.


 


20.          INDEMNIFICATION


 


(a)           Motient
shall in no event be liable to Aether Systems, and provided that Motient
complies with the provisions of paragraph (b) of this section 20, Aether
Systems shall indemnify 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 19(a) of this Agreement and subject to a cap of $[*] per
occurrence, excluding any prepayment of invoice obligations:


 


(i)            The
content or addressing of any message transmitted by Aether Systems 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


 


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


 


(iii)          The infringement of currently filed patents,
trademarks or copyrights, arising from the combination or use of
Motient-provided facilities with facilities or services provided by Aether
Systems or any other entity acting on Aether Systems’ behalf or at Aether
Systems’ request, including Aether Systems’ service and/or equipment vendors;
or


 


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


 


(b)           Motient
shall promptly notify Aether Systems in writing of any claim, action or suit
asserted against Motient based upon the events specified in paragraph (a) of
this section 20 and shall reasonably cooperate with Aether Systems in the
defense thereof.  Aether Systems shall,
at its expense and using counsel acceptable to


 












* Confidential information.  Information has been redacted.


 


14

















 


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. 
Aether Systems shall have the right to control the defense and any
settlement of such claim, action or suit. 
Aether Systems 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)           Aether
Systems shall in no event be liable to Motient, and provided that Aether
Systems complies with the provisions of paragraph (e) of this section 20,
Motient shall indemnify and hold harmless Aether Systems against loss and/or
liability for any of the following, subject to the limitations set forth in
section 19(a):


 


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


 


(ii)           any
loss, liability, damage, or expense caused to Aether Systems 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)           Aether
Systems shall in no event be liable to Motient, and Motient shall, without
limitation, indemnify and hold harmless Aether Systems against loss and/or
liability for infringement of patents, trademarks, or copyrights currently
filed, arising from the combination or use of Aether Systems-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)           Aether
Systems shall promptly notify Motient in writing of any claim, action or suit
asserted against Aether Systems based upon the events specified in paragraphs
(c) and (d) of this section 20 and shall reasonably cooperate with Motient in
the defense thereof.  Motient shall, at
its expense and using counsel acceptable to Aether Systems, resist and assume
responsibility for the defense of such litigation, provided that Aether Systems
may, at its sole 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 Aether Systems in connection
therewith.


 


21.          NOTICES


 


All notices, demands, offers, elections, requests or
other communications required or permitted by this Agreement shall be in
writing and shall be sent by prepaid registered or


 


15

















 


certified mail, return receipt requested, and addressed
to the parties at the addresses set forth below or to such other address as
shall, from time to time, be supplied by any party to the other party by like
notice, and shall be deemed given upon receipt.  All such notices shall be addressed to persons listed below:


 


	
  If to Motient:

  	
  If to Aether Systems:

  
	
   

  	
   

  
	
  Mike
  Fabbri

  	
  Michael
  Pesto

  
	
  Vice
  President

  	
  Manager
  of Carrier Relations

  
	
  Corporate
  Account Sales

  	
  Wireless
  Services Division

  
	
  Motient Communications Company

  	
  Aether Systems, Inc.

  
	
  300
  Knightsbridge Parkway

  	
  11460
  Cronridge Drive

  
	
  Lincolnshire,
  IL  60069

  	
  Owings
  Mills, MD  21117

  
	
  Telephone:

  	
  (847) 478-4231

  	
  Telephone:

  	
  (410) 654-6400 x5297

  
	
  Fax:

  	
  (847) 478-4369

  	
  Fax:

  	
  (410) 654-6554

  
	
  Email:

  	
  mike.fabbri@motient.com

  	
  Email:

  	
  mbpesto@aethersystems.com

  
	
   

  	
   

  
	
  Copy:

  	
  Copy:

  
	
   

  	
   

  
	
  Randy
  Segal

  	
   

  
	
  Senior
  Vice President and General Counsel

  	
   

  
	
  Motient Communications Company

  	
   

  
	
  10802
  Parkridge Blvd

  	
   

  
	
  Reston,
  VA  20191-5416

  	
   

  
	
  Telephone:

  	
  (703) 758-6130

  	
   

  
	
  Fax:

  	
  (703) 758-6134

  	
   

  



 


22.          GENERAL


 


This Agreement shall be binding on the successors and
permitted assigns of the parties hereto. 
Neither party shall assign this Agreement without the other party’s
prior written consent; provided  that either party may assign this
Agreement to an entity that is a parent or subsidiary organization or other affiliate
under common control, without the other party’s consent but shall provide
thirty (30) days’ advance notice of such permitted assignment.


 


If any provision of this Agreement or the application
thereof to any party or circumstance shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstance, other than-those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforced to the fullest extent permitted by law.


 


Neither party may bring an action, regardless of form,
arising out of this Agreement more than one year after the cause of action has
arisen.


 


The provisions of this Agreement, which by their
nature are intended to remain in effect after the expiration or termination of
this Agreement, including but not limited to the provisions


 


16

















 


regarding payment for Services and taxes in section 5,
section 13, section 14, section 16, section 17, section 18, section 19, section
20, and this paragraph regarding survival of Agreement provisions in this
section 22, shall survive the termination or expiration of this Agreement for
any reason.


 


The headings in this Agreement are solely for
convenience of reference and shall not affect its interpretation.


 


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. 
THE PARTIES AGREE 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.


 


This Agreement is the entire agreement between the
parties with respect to the subject matter hereof, and no alteration,
modification or interpretation hereof shall be binding unless in writing signed
by both parties.


 


IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as of the day and year first written.


 


	
  AETHER SYSTEMS, INC.

  	
  MOTIENT COMMUNICATIONS

  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  	
  Name

  
	
   

  	
  Title

  	
   

  	
  Title

  
						



 


17

















 


ATTACHMENT A


 


Prices


 


[*]


 


 












*  Confidential
information.  Information has been
redacted.


 

















 


ATTACHMENT
B


 


eLink(SM) WIRELESS EMAIL SERVICE


 


eLink(SM) is a
two-way wireless communications service that allows users to send, receive, and
reply to messages from a handheld device. 
With eLink and the Research In Motion (RIM) 850 Wireless Handheld
device, you can:


 


•      Send and
receive email messages


•      Manage your
schedule, tasks, and contacts


•      Increase your
productivity


 


FEATURES 


 


•      Same email
address as your Internet POP or IMAP compliant desktop email, so messages look
like they’re coming from your desktop


•      Personal
wireless email address (username@2way.net)


•      Filter and
forward capabilities; you decide which mail is sent to your wireless device


•      Many of the
same menus found in your Internet mailbox - automatic response, forward, save,
delete


•      Personal Information
Manager (PIM) tools (schedule, contacts, and tasks) that sync with your PC*


•      Text messaging
to fax machines with fax display name


•      Paging
function with toll-free number and PIN


•      24 x 7
customer service


 


eLink messages
flow through the Motient network, the nation’s first and largest wireless
two-way data network.  Its coverage is
unmatched in the U.S. wireless industry, touching more than 220 million people
on the street and deep inside buildings. 
Unlike other wireless networks, the Motient network was built to service
not only on-the-go users, but also those in office towers and corporate
campuses.


 


With full two-way
communications capabilities, you can create, receive, and answer messages right
from the palm of your hand.  View them
on a clear and crisp backlit screen. 
Type on a standard QWERTY keyboard. 
The device recharges quickly and runs on a single NiMH or alkaline
battery.


 


The Motient
network is a packet data network. 
Wireless packet data networks are similar to cellular networks at a high
level.  However, wireless data networks
were built for data communication, not voice.  
Packet data networks are designed to segment data into packets, much
like the X.25 standards specified for wireline networks. The actual data is
broken up into packets of either 252 or 512 bytes and then sent over the
network.  What differentiates packet
data networks from other networks is that users are charged only for the data
that actually passes, not for the time connected.  This allows users to always be on.  Packet data networks are not optimal for handling large file
transfers (more than 10K).


 

















 


ATTACHMENT C


 


BlackBerry(TM) by Motient Wireless Email
Service


 


BlackBerryTM by
Motient is a wireless solution that meets the numerous challenges of mobile
email – access, security, portability, enterprise manageability, integration,
and cost.  Specially designed for
corporate environments using Microsoft ® Exchange, BlackBerry combines wireless
email and Personal Information Manager (PIM) capabilities with the RIM Wireless
HandheldTM and the nations first and largest data network.


 


Features 


 


•      Send, receive,
forward and reply to email messages


•      Single mailbox
integration with only one email address


•      PIM tools that
synchronize with your calendar, address book, and task list


•      End-to-end
security between corporate email system and handheld


•      Nationwide
wireless connectivity


•      Filter
capabilities so you decide which email is sent to your wireless handheld


 


The BlackBerry
wireless email solution tightly integrates with Microsoft Exchange email
accounts, allowing your wireless handheld to become an extension of your
desktop.  Read, compose, forward, reply,
file, or delete messages from the palm of your hand.  For even greater inbox manageability, filters can be established
to monitor which messages are sent to your handheld.


 


BlackBerryTM Software


 


The BlackBerry
Enterprise Server is the centerpiece of the BlackBerryTM by Motient email
solution.  Email redirection and message
encryption occur at the server rater than the desktop.  It provides centralized administration,
performance, monitoring, configurable handheld security attributes, and asset
tracking tools.


 


BlackBerry Desktop
Software installs and runs on the user’s desktop PC.  It is an integrated suite of applications that provides organizer
synchronization, folder management tools, email filtering capabilities,
information backup utilities, and an application loader.


 


BlackBerry is
designed to provide a high level of security. 
Encryption occurs between the handheld and corporate email system to
ensure message integrity.  BlackBerry
incorporates Triple DES encryption technology to meet stringent corporate
security guidelines for remote email access.


 

















 


ATTACHMENT D


 


GENERAL RESELLER RESPONSIBILITIES


 


	
  SALES RESPONSIBILITY

  	
   

  	
   

  
	
  Lead Generation

  	
   

  	
  Aether Systems shall be the primary sales lead
  provider.  Motient may provide leads
  to Aether Systems as Motient identifies such opportunities as part of its
  normal course of business.

  
	
   

  	
   

  	
   

  
	
  Proposal Support

  	
   

  	
  Aether Systems will be responsible for developing
  any and all proposal materials. 
  Motient will support with Motient background, network coverage, cost
  justification model development and any other boilerplate requirements.

  
	
   

  	
   

  	
   

  
	
  PROJECT IMPLEMENTATION

  	
   

  	
   

  
	
  Implementation Training

  	
   

  	
  Aether Systems will be responsible for all training
  to include end user customer, help desk and system administrator
  training.  Motient will support such
  training by providing telephone consultation and commercially reasonable
  levels of documentation related to the Service.

  
	
   

  	
   

  	
   

  
	
  Hardware/Software Install

  	
   

  	
  Aether Systems will be responsible for installation
  and testing of all hardware and software components.

  
	
   

  	
   

  	
   

  
	
  POST INSTALL SUPPORT

  	
   

  	
   

  
	
  Billing and Collection

  	
   

  	
  Aether Systems shall be responsible for billing and
  collection of fees from its end user customers.  Aether will pay Motient invoices as set forth in this
  Agreement.

  
	
   

  	
   

  	
   

  
	
  Help Desk (End User Customer)

  	
   

  	
  Aether Systems will provide its employees and agents
  with help desk training as required and will act as the first level of
  support for end user customer service. 
  Motient will provide second level help desk support to Aether Systems
  (and Motient shall not be required to provide support directly to end user
  customers of Aether Systems).

  



 

















 


ATTACHMENT E


 


[*]


 


 












*  Confidential
information.  Information has been
redacted.


 

















 


ATTACHMENT F


 


Service Level Commitments and Escalation Procedures


 


Purpose
– The purpose of this document is to provide on overview of
the Motient Network Operations Center (MNOC) Service Level Agreement
processes.  The MNOC works closely with
the Motient Customer Support Center. 
Our combined efforts are to provide the highest level of customer
satisfaction.


 


Objective
– The objective of the MNOC is to manage and maintain the
performance and availability of the Motient network.  The Motient network performance objective is to consistently
maintain network availability at 99.99%. 
The availability requirement includes both scheduled and unscheduled
outage minutes.  The foregoing performance
objective is subject to the commitment regarding Network Availability set forth
in Attachment G to the Agreement.


 


Overview
– The MNOC has technical personnel onsite 7 days per week, 24
hours per day (24 x 7).  These
technical resources pro-actively manage the assets of the Motient network.  The Motient Operations department is
responsible for the following disciplines; Network Management, Problem
Management, Change Management, and Quality/Continous Improvement.


 


Network
Management – The Motient network management systems are
designed with products and tools that work in concert with one another to
provide integrated, end-to-end network management and control.  The systems are integrated and provide a
view to various technologies, physical platforms, Operating systems and
telecommunications facilities.  This
integration gives Motient the capability to monitor and manage the entire
network from base station components to the modem at the customer’s host
computer.  Extensive back-up facilities
enable Motient to restore network functions quickly, thus minimizing impact to
the customer.


 


Host
Connectivity – Motient’s NetLinks offering provides a
portfolio of high availability end-to-end connectivity offerings to the link
customer hosts to the Motient network. 
The bundled offerings include the telecommunications circuit, routers,
CSU/DSUs or modems and spares at both the customer and Motient sites, 24 hours,
7 days a week pro-active network monitoring, problem resolution, and dial
restoration.  Motient offers various
connectivity options frame relay, VPN and the Internet.  Service levels are established by product
type.


 


RF
Infrastructure – All base stations are equipped with remote
diagnostic capabilities which allow personnel at the Motient Network Management
Center to remotely monitor base station conditions, initiate performance tests
and dispatch repair technicians whenever performance drops below optimal
levels.  Motient contracts a nationwide
network of highly trained and experienced field service personnel in a business
partnership with Motorola to service and restore the base stations.  This provides for the best maintenance
response and lowest mean-time-to-restore (MTTR) in case of a base station
failure.


 


Problem
Management – In most instances Aether problem reporting
should be directed to the Motient Customer Support Center.  Motient’s NOC will pro-actively notify our
Customer Support Center of any defects that cause an interruption to major
network components or large


 

















 


service
areas.  In case of a high availability
host connection failure or host session lost between Aether and Motient, the
MNOC will initiate direct communication with the Aether NOC.  Effective problem management is composed of
the following four stages; problem documentation, problem identification,
problem assignment, and problem resolution. 
Motient and Aether will work closely to address these four areas
independently and jointly as required. 
This section provides an overview of these areas.


 


Problem-Documentation
– Both Motient and Aether will enter all problem related
calls as problem entries into their respective problem tracking systems.  It will be a priority of both organizations
to collect as much information as possible to assist iii problem tracking and
resolution.  Motient will use the Action
Request System by Remedy Corporation for problem tracking.  A unique number will be assigned to each
problem by both Aether and Motient. 
These problem log numbers will be cross referenced in their respective
tracking data bases.


 


Problem
Identification – Motient has various tools perform problem
notification and identification to the MNOC and CSC.  There are various opportunities for the various problems to be
identified during the course of business and network traffic.  All problems should be identified and
communicated to receive appropriate resolution.  Aether Customer Service group will be, in most cases, the first
point at which a problem is identified.


 


Problem
Assignment – When a problem is under investigation, Motient
will take assignment.  In most cases,
normal problems will be assigned and managed by the Customer Support
Center.  Upon a host or session failure,
MNOC will take immediate assignment of the problem.  A problem severity assignment will be included with the assigned
problem log number.  The date and time
of the beginning of the service interruption and all relative information will
be documented.  The Motient NOC will
continue to work the problem to resolution. 
After resolution, a post-mortem will be held to identify “root
cause.”  There are opportunities where
Aether will need to continue to worse with Motient to determine the defect.


 


Coverage
Questions – When reporting coverage problems regarding a
specific Aether device, Motient will require the following information:


 


1.     Name of the Aether Customer
and its representative’s name.


2.     Aether wireless device LLI
and serial number.


3.     Street address (or nearest
major intersection), city, state, and zip where the device encountered a
coverage problem if available.  When in
building, what level (below ground, ground level, above ground)?


4.     Has the unit worked in the
area before?


5.     Are other Aether devices
working in the area?


6.     When did the Aether device
stop working?


 


When coverage
requirements change or there is a requirement for additional coverage, Aether
will submit request through the Motient Project Manager.


 


Host
Line Problems — Class of Service – When reporting host
connectivity problems, Motient will require the following information:


 


1.     Name of the Aether Technical
Support representative


 

















 


2.     Motient Operations will work
witty Aether Technical support and Network Operations groups to reactivate the
host connectivity based on class-of-service of connectivity.


 


Class-of-Service
of Connectivity – High Availability Frame has dial backup
capability and Network Operations will work with the customer to restore
service in the case of a frame outage. 
Notification will be made to the Aether that they are working on dial
backup.  Standard Frame does not have
dial backup and the connectivity will be down until the problem is resolved
with connectivity a call will be place to Aether that this circuit is
down.  X.25 Dialup Motient will work
with the third party vendor to ensure that connectivity is brought backup.  Motient will notify Aether when connectivity
is down.  Internet connection does-not
have any type of backup.  It will be up
to the customer to ensure that they have connectivity to their ISP and up to
Motient’s firewall.  Motient will notify
Aether that the protocol session has dropped. 
In either case, if Motient Operations sees the IP connection
de-activated, Motient Operations will contact the Aether Technical Support
representative.


 


	
  Severity

  	
   

  	
  Definition

  	
   

  	
  Update Cycle

  Prime time

  
	
  1

  	
   

  	
  Motient or AETHER
  failure affecting the majority of AETHER users in the entire nation, region,
  or major city. Requires immediate attention.

  	
   

  	
  60 minutes and when
  fixed

  
	
  2

  	
   

  	
  Motient has an outage
  in very limited area (i.e. small area of one city). AETHER is experiencing
  disruptions of service caused by ARDIS network problems. Requires focused
  effort by appropriate functions.

  	
   

  	
  2 hours and when fixed

  
	
  3

  	
   

  	
  AETHER or Motient has
  experienced some type of service-related problem but the problem, although
  not resolved, is currently under control and there is no current service
  interruption. AETHER has problem believed by AETHER and Motient to be
  AETHER-caused. Requires at least daily updates by the responsible function.

  	
   

  	
  8 hours and when fixed

  
	
  4

  	
   

  	
  AETHER issues that are
  not related to service outages, and individual DIAD III unit failures
  reported but not an Motient problem.

  	
   

  	
  On request

  



 


Problem
Status Reports & Resolution – When a problem has been
resolved, the resolving group will communicate the date and time of recovery of
the service interruption and the reason or root cause of the service
interruption.  The problem resolution
call will contain all of the information required and available to understand
the nature and cause of the problem. 
All problem updates will be handled by Motient contacting the Aether
Customer Service group via telephone and providing the update.  Aether Customer Service will ensure the
restoral notification is distributed internally and externally to affected end
users.


 

















 


Escalation
& Response Times – Aether technical support and customer
service personnel will be in contact with Motient representatives.  It is expected that concerns about a
specific problem will be fully understood and directed to the appropriate individuals
so that updates and resolution can be provided based upon the agreed severity
levels.  If the update cycle identified
in the Problem Severity Section is not met, Aether or Motient personnel may
escalate a problem according to the table below.  In addition, if either group believes a problem requires
additional resources or management attention, then the next course of action is
determined by the escalation schedule presented below.  At their discretion, either party may wish
to escalate a problem within the other party’s organization at any time.  Escalation can be accomplished by calling
the other organization and requesting the next level of escalation.


 


	
  Escalation
  Step

  	
   

  	
  Motient Responsible Manager

  	
   

  	
  Aether Responsible

  Manager

  
	
  1

  	
   

  	
  Group Leader of
  Customer Care Representatives

  	
   

  	
  Aether Senior Support
  Engineer

  
	
  2

  	
   

  	
  Manager of Customer
  Support Center and/or Managers of Network Operations and/or Systems
  Operations

  	
   

  	
  Aether Customer Service
  Manager

  
	
  3

  	
   

  	
  Director of Operations

  	
   

  	
  Aether Director of
  Customer Support

  
	
  4

  	
   

  	
  Vice Presidents of
  Technology and Operations

  	
   

  	
  Aether Vice President

  



 


Change
Management – Planned service interruptions may be necessary
to perform maintenance on equipment or to install software or hardware
revisions/updates.  Both parties agree
to provide each other with at least one week notification of planned outages
greater than 15 minutes.  At the time of
such notification, Motient will advise Aether of any potential impact on
Motient network components and network performance of the planned change.  The exact schedule for change implementation
will be given 72 hours prior to installation of the change.  Motient has a regular weekly change window;
Friday morning, 00:00 - 02:00 CST. 
Emergency change notification will be given as soon as possible before
implementation of the change.  At times,
it may be necessary to install emergency changes prior to notification, in
which case, notification will be given as soon as possible, after
implementation of the change.  Motient
will communicate notification to the Aether Customer Service group by telephone
to the Aether representative listed in Appendix A.1, Contacts and
Escalation.  Notification, from Aether,
will be communicated to the Motient Representative listed in Appendix A.1,
Contacts and Escalation.  An updated
list will be provided whenever any changes in personnel or contact numbers
occur.  The contact in each company will
ensure notification of change is given to the correct representatives in their
respective companies.


 


Quality
/ Continuous Improvement – Historically Motient has employed
a company-wide quality program that was instituted to govern all facets of our
wireless data business and network operations. 
This program is primarily based upon Motorola’s Six Sigma or 99.999%
processes and concepts.  For the Motient
network, all components are measured using these practices.  A complete measurement history is retained
and appropriate improvement goals are set. 
Availability metrics are made available to our customers through the
Customer Support Center.


 

















 


Appendix A.1


 


Contracts and Escalation


 

















 


ATTACHMENT G


 


Network Availability


 


The Motient
network and the Service will not be available at all times.  Service for all on-street or in-building
locations within a geographic area is impossible.  Motient is not responsible for the security of data during
transmission and Motient is not responsible for any transmission errors or
corruption of data or for the content or availability of any add-on
service(s).  The Service is provided “AS
IS” and “AS AVAILABLE” and Motient does not warrant uninterrupted Service or
error-free operation.


 


Network
Availability – The Motient message switches, network control
processors, and RF base stations in aggregate shall be operational not less
than 99% during each month.  This
warranty covers unavailability caused by phone line failures internal to the
Motient Network, but excludes unavailability caused by phone line and/or
Internet connection failures connecting Aether Systems’ (or its end user
customers’) host computer.


 


Availability level
of the Network shall be calculated as a percentage as defined below:


 


Availability = 1 –
[{(S Effective Outage Minutes/S
SU’s)}/Total Minutes X 100


 


Where:


 


Effective Outage Minutes
= Actual Outage Minutes X SU’s, handled by each element (Base Stations are discounted
by probability of coverage by friendly neighbor base stations).


 


SU’s  = Number of Subscriber units for each
network element


 


Total Minutes = Total
minutes in the month (use 14,600 equivalent of 8 hours usage every day).


 


The calculation will
include all outages (planned and unplanned; 7 X 24).  If the availability falls below 99.0%, outages that meet the
following criteria shall be removed and availability re-calculated.  Outages that may be excluded must result
from:


 


•      Maintenance
scheduled by Motient not less than 24 hours in advance for the purpose of
repair, maintenance, replacement, upgrade or other similar purpose; or


 


•      An event
outside the reasonable control of Motient or not occurring on the network; or


 


•      Any equipment,
communication lines or software procured, provided or operated by Aether
Systems (or its end user customers) in connection with its use of the Network;
or


 

















 


•      Any outage
which does not materially disrupt the use of Service by Aether Systems or its
end user customers.


 

















 


ATTACHMENT H


 


Certain Terms and Conditions


 


1.     Nature and Control of
Motient Network:  Aether Systems is
remarketing the MotientSM Services to its customers in conjunction
with database information services and/or other value-added services.  Motient controls the radio network which
enables communication and provides access in accordance with FCC rules and
regulations to and through Aether System on a shared basis.  All customers of Aether Systems shall use
the MotientSM network so as not to cause undue interference with any
other users of the MotientSM network.


 


2.     Security:  Customers of Aether Systems are responsible
for developing and/or maintaining procedures, external to the MotientSM
network, to safeguard programs and data, and for the backup and reconstruction
of lost data, programs or procedures. 
Consequently, customers of Aether Systems release Motient from all
liability for the loss or alteration of programs or data or their acquisition
by another party, except for Motient’s failure to implement those aspect’s of
security procedures which are under Motient’s direct control.  Aether Systems assumes no responsibility or
liability for customer activities beyond informing its customers of Motient’s
system requirements and permitting the disconnection of customers violating
such requirements.  Motient will not be
responsible for transmission errors, corruption of data or for the security of
data during transmission via public telecommunications facilities.


 


3.     Confidentiality:  Any and all programs and other materials
provided by Motient to Aether Systems for distribution or use by its clients in
connection with the use of the Motient Services shall remain the exclusive and
confidential property of Motient, are licensed-solely for use in conjunction with
the Services, shall not be reproduced or copied except as required for the
authorized use of the Services or as required by law, and shall be returned to
Motient or destroyed, as requested by Motient.


 


4.     Limitation of Liability:  Aether Systems will inform its customers
that the following provisions govern such customer’s rights against Motient in
the event that the customer experiences a partial or total failure, malfunction
or defect in any of the Services provided by Motient under this Agreement.  In no event shall Motient be liable for
special, incidental or consequential damages (including without limitation,
lost profits, lost savings, incidental damages or other economic consequential
damages, even if Motient has been advised of the possibility of such damages)
to the extent such may be disclaimed by law. 
Further, Motient shall not be liable for any damages based on any third
party claims.


 

















 


AMENDMENT
to the TERRESTRIAL NETWORK RESELLER AGREEMENT


 


between
MOTIENT COMMUNICATIONS INC. and AETHER SYSTEMS INC.


 


THIS AMENDMENT (the “Amendment”) to the Terrestrial
Network Reseller Agreement dated November 29, 2000 (the “Agreement”) between
MOTIENT COMMUNICATIONS INC. (“MOTIENT “) and AETHER SYSTEMS, INC. (“AETHER”) is
entered into as of 8/17, 2001 (the “Amendment Effective Date”) by and between
Motient and Aether.


 


WITNESSETH:


 


WHEREAS, MOTIENT and AETHER entered into the Agreement
and now desire to amend the Agreement in certain respects.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, MOTIENT and AETHER
agree as follows:


 


The following shall be added as a new
section 5(f) of the Agreement:


 


Motient shall provide an
optional Messaging Service Plan for eLinkSM, BlackBerryTM, or other
mutually agreed upon messaging-based services; provided, that the air
time usage profile for any such services, as used or contemplated to be used by
the end user, does not exceed [*]. 
Notwithstanding Attachment A, the prices for such Messaging Service Plan
shall be as follows:


 


	
  Network Registration Fee:

  	
  Waived

  
	
   

  	
   

  	
   

  
	
  Volume Commitments:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Quantity

  	
   

  	
  Base Wholesale Price

  
	
   

  	
   

  	
   

  
	
  [*]

  	
   

  	
  [*]

  
					



 


In order to make use of the Messaging Service Plan and
have the benefit of the foregoing pricing, AETHER shall be required to notify
MOTIENT, via the agreed upon subscriber unit registration process, of any
Aether end-users who are registered to and invoiced pursuant to this Messaging
Service Plan. For the avoidance of doubt, air time Service used by any Aether
end-user customers who are not covered by this Messaging Service Plan shall be
billed on a “per kb” basis in accordance with Attachment A of the Agreement.


 


Any required Software Licenses or other add-on service
charges necessitated by a specific application or device shall be additional.


 


[*]


 


Air time Service consumed by subscriber units in the
Messaging Services Plan shall be invoiced to, and counted towards the air time
service commitments made in the Agreement. All


 












* Confidential Information. 
Information has been redacted.


 

















 


amounts payable by Aether for air time Service used
under the Messaging Services Plan shall be counted against any prepaid amounts
under the Agreement, as provided in the Agreement.


 


[*]


 


IN WITNESS WHEREOF, MOTIENT and AETHER have caused this
Amendment to be signed and delivered by their duly authorized representatives,
all as of the Amendment Effective Date.


 


	
  AETHER
  SYSTEMS, INC.

  	
  MOTIENT
  COMMUNICATIONS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/  David C.
  Reymann

  	
   

  	
  By:

  	
  /s/ Michael Fabbri

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Printed

  	
  Printed 

  
	
  Name:

  	
    David C. Reymann

  	
   

  	
  Name

  	
  Michael Fabbri

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  	
  Title:

  	
  VP

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  8/16/01

  	
   

  	
  Date:

  	
  8/17/01

  	
   

  
											



 












* Confidential
Information.  Information has been
redacted.


 


19