**Exhibit10.7**

 

**TERRESTRIALNETWORK 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, OwingsMills, Maryland, 21117 (“Aether Systems”) and Motient Communications Company(“Motient”), a New York general partnership and wholly owned subsidiary ofMotient Corporation, with offices at 10802 Parkridge Boulevard, Reston,Virginia, 20191-5416.

 

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

 

WHEREAS, Aether Systems currently provides certainsoftware and other value added services in the wireless communicationsmarketplace; and

 

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

 

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

 

WHEREAS, Motient desires to provide, and AetherSystems desires to resell, the Services, subject to the terms and conditionshereof.

 

**NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:**

 

# 1.             **DEFINITIONS** - For purposes of thisAgreement:

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

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

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

 

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## (d)           “Service”or “Services” means Motient’s shared terrestrial radio-based datacommunications network service, operating in the 800 MHz frequency band, whichenables a user to access and communicate wirelessly with various third partysupplied information sources, or with certain subscribers using the MotientSMwireless terrestrial network.  TheService includes the use of the Motient message switches and related networksoftware when accessed by user procured terminals and compatible software.

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

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# **2.****             SCOPE OF AGREEMENT**

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

 

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

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## (b)           AetherSystems shall develop and implement a non-exclusive, non-binding jointmarketing plan to facilitate the resale of one or more of the Services byAether Systems.  Such marketing plan mayinclude, without limitation:

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### (i)            jointdevelopment of product literature describing the Services and theircapabilities;

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### (ii)           jointattendance at trade shows, conferences and related events within themarketplace;

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### (iii)          joint presentations to prospective clients ofthe Services;

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### (iv)          jointpress releases, advertising and participation at the Motient booth at certaintrade shows;

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### (v)           jointmarketing projections for the Services;

 

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### (vi)          jointdevelopment activities with terminal hardware vendors;

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### (vii)         previews of Motient’s future technology andbusiness plan;

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### (viii)        at Aether Systems’ option, the plan also mayinclude joint marketing plans for the eLink (SM) and BlackBerryTM by Motientservices.

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## (c)           Inconnection with the foregoing joint marketing plan, each party may use thetrademarks and service marks of the other party; provided, that any suchuse is strictly conditioned on the prior written approval of the owner of suchmarks, and on the user’s compliance with any and all usage guidelinesestablished by the owner of such marks.

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## (d)           AetherSystems and Motient agree not to publish or use advertising, sales promotionsor any publicity matters using the other party’s name, including the mention ofthe existence of this Agreement, without the prior written consent of the otherparty, which consent will not be unreasonably withheld; provided, thateach party may, with the advice of counsel, make such public disclosures of thisAgreement as may be necessary to ensure such party’s compliance with itsfederal securities law obligations.

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# **3.****             AETHER SYSTEMSMARKETING AND DEVELOPMENT OBLIGATIONS**

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

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## (b)           Inaddition to the general reseller responsibilities that are set forth in AttachmentD to this Agreement (which is hereby incorporated by reference), AetherSystems agrees, with respect to its reselling of eLink (SM) and BlackBerryTMby Motient:

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### (i)            Toprovide its own internet domain for E-mail connectivity for end-usersregistered by Aether Systems;

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### (ii)           Tobe responsible for end user registration and for providing Motient with thefollowing information for each end user registered by Aether Systems:

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

 

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

 

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

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## (c)           Inthe performance of its rights and obligations under this Agreement, AetherSystems may at its option enter into agreements with subagents subject to thefollowing:

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### (i)            Subagentsshall be subject to all applicable provisions of this Agreement, and AetherSystems shall require of its subagents in writing that its subagents’ actionsare in compliance with the terms and conditions of this Agreement, and shall beresponsible for the acts or omissions of its subagents relative to the Service;and

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

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

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### (iv)          AetherSystems’ payment arrangements with subagents shall be the sole responsibilityof Aether Systems and Motient shall have no responsibility or obligation tocompensate subagents; and

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### (v)           Withrespect to Aether Systems’ resale of BlackBerryTM by Motient, the resale of suchservice by any subagent of Aether Systems must be approved in advance, inwriting, by Motient and by Research in Motion; and

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### (vi)          Motientreserves the right to request that Aether Systems terminate a subagent’s rightto market or promote the Service or sell or service data terminals, who hasviolated the provisions of items (i), (ii), (iii) and/or (v) of this paragraph3(c).

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# **4.****             LIMIT ON AMOUNT OFAIRTIME TO BE PROVIDED**

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

 

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* Confidentialinformation.  Information has beenredacted.

 

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

 

# **5.****             PRICING AND PAYMENT**

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## (a)           AetherSystems will pay Motient for the Services at the rates set forth in AttachmentA to this Agreement, which is incorporated herein by reference.

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

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## (c)           AetherSystems agrees to prepay Motient for the Services, according to the followingschedule:

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[*]

 

The foregoing prepaymentsare for all Service consumed by Aether Systems, whether in connection with (1)Aether Systems’ assumption and provision of the Transportation Businesspursuant to the Asset Sale Agreement, (2) Aether Systems’ authorized resale ofMotient’s eLink (SM) wireless email service and BlackBerryTM by Motient, and (3)Aether Systems’ possible resale of the Services in connection with other valueadded applications and service offerings in the wireless communicationsmarketplace that Aether Systems may develop and/or offer in the future.  Subject to sub-section (e) below, theforegoing prepayments shall be paid by Aether Systems, regardless of the amountof Service theretofore consumed by Aether Systems.  The obligation of Aether Systems to make such prepayments shallnot be subject to any condition or contingency, except that credits due AetherSystems for outages or service restrictions as set forth in section 18 may bededucted from such prepayments (in which case such credits shall beeliminated), and no prepayment shall be due during any service outage, in whichcase prepayment shall be due on the first business day after such failure ordelay is remedied.

 

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* Confidentialinformation.  Information has beenredacted.

 

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## (d)           AsAether System consumes Service during the term of the Agreement, Motient willissue credits on Aether Systems’ monthly invoices against any prepaymenttheretofore made by Aether Systems, at the rates described in subsection (a)above, up to the Capacity Limit. Motient will provide quarterly summaries indicating the remainingprepayment balance, the credits issued, and the specific charges against whichsuch credits were issued.

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

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# **6.****             BILLING AND PAYMENTS**

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

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

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## (c)           Motientwill invoice Aether Systems separately, on a monthly basis, for the licensefees set forth in section 5(b) above. For such amounts, and also with respect to Service to the extent notcovered by the prepayments described above or the credits set forth below,Aether Systems will pay Motient’s invoices within 30 days after the date ofsuch invoice.  Motient reserves theright to charge, and Reseller agrees to pay, a late charge on any undisputedamount unpaid on or after the due date, and on any other outstanding balance,equal to the maximum amount allowed by applicable law.

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## (d)           TAXES:  All rates set forth in this Agreement areexclusive of Applicable Taxes, which shall be the responsibility of AetherSystems.  For purposes of thisAgreement, “Applicable Taxes” are taxes, assessments, surcharges, levies, orsimilar items assessed by a governmental body. Unless an appropriate tax exemption certificate is provided, AetherSystems is liable for, and shall indemnify Motient from and against allApplicable Taxes properly chargeable to Aether Systems or its customers withrespect to Motient’s provision of the Service to Aether Systems or relating toAether System’s purchase, use, resale, or lease of

 

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

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# **7.****             RESTRICTIONS ON USE**

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Aether Systems acknowledges that Motient reserves theright to deny service to any Aether Systems end user should the Service be usedfor any purpose that Motient reasonably determines to be materiallyinconsistent with the intended purpose and functionality of the Motient network.  Aether acknowledges that Motient’s networkuses “packet data” technology, and, accordingly, examples of unintended usesinclude data streaming (i.e., continuous transmission of data) or file transfer(i.e., sending files as opposed to sending shorter bursts of data andmessages).

 

# **8.****             TERM AND TERMINATION**

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## (a)           ThisAgreement shall begin on November 29, 2000 and shall end on November 29, 2004(the “Initial Term”).  At the end of theInitial Term, the Agreement may be renewed on terms and conditions and at ratesto be agreed in writing by the parties, provided that neither party is then indefault 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 tocontinue 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) theend of the fifth year following the date of execution of the Agreement.

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

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

 

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## event, Motient shall have the right to assume Aether Systems’ contractswith its customers, and to provide Service to such customers directly. In theevent of termination by Aether due to default by Motient, Motient promptlyshall refund or return to Aether Systems, as appropriate, any prepaymentsdescribed in section 5(c) above that have actually been paid to Motient byAether Systems (net of any charges for Service actually used through the dateof termination), plus any Service credit balance, less only such amounts as aredue for use of the Service by Aether Systems before termination and such otheramounts as Motient reasonably shall determine are due and owing, or will becomedue and owing.  Each and all of therights and remedies of the parties hereunder are cumulative to and not in lieuof each and every other such right and remedy. Failure or delay on the part of Motient or Aether Systems to exerciseany right, remedy, power or privilege hereunder shall not operate as a waiverthereof.  A waiver, to be effective,must be in writing and signed by the party making the waiver.  A written waiver of a default shall notoperate as a waiver of any other default or of the same type default on afuture occasion.

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## (d)           If(a) Motient fails to obtain and maintain all required and material FCC or othergovernment approvals for the provision of the Service in Motient’s authorizedterritory as described in this Agreement or (b) a final order of the FCC, orother government agency having jurisdiction, revoking or denying renewal ofMotient’s authorization is issued and becomes effective, Aether Systems may, inits sole discretion, terminate this Agreement in its entirety or to the extentor in the geographic areas where Aether Systems’ use or provision of theService is affected by Motient’s failure or such final order.  If Aether Systems terminates this Agreementin its entirety, then Aether Systems shall be entitled to a refund of allprepayments actually paid to Motient (net of all charges for Service actuallyused through the date of termination); if Aether Systems terminates thisAgreement in part, then Motient shall refund a pro rata share of suchprepayments corresponding to the terminated portion of this Agreement.

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# **9.****             AETHER SYSTEMRESPONSIBILITIES**

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Aether Systems acknowledges and agrees to inform itsend user customers that:

 

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

 

•      radiofrequency coverage maps, if provided, are intended to indicate expectedcoverage and are not binding as an exact representation of coverage;

 

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

 

•      occasionallynetwork availability will be lost, and that neither Aether Systems nor itsunderlying network provider can be responsible for transmission errors, forcorruption of data, or for the security of data during transmission viatelecommunications facilities not owned by Motient.

 

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

 

# **10.****          MOTIENT RESPONSIBILITIES**

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## (a)           Motientwill provide coverage maps with respect to its network through its Website.  Motient will post updates tothese coverage maps within sixty (60) days of any significant changes incoverage.  Motient’s coverage maps arebased on street level coverage.  Motientwill also work with Aether Systems to provide Aether Systems with access to thecoverage maps or the underlying data in a format that will allow Aether Systemsto provide its end user customers with access to coverage map informationwithout directing such customers to Motient’s Web site.  Aether Systems understands that it may haveto purchase software, at its own expense, to obtain such data in Web format;Motient agrees to assist Aether Systems in identifying such software and toprovide the data if Aether Systems obtains such software.

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## (b)           TheService Level Commitments and Escalation Procedures set forth in AttachmentF of this Agreement are incorporated herein by reference.  As appropriate, such commitments andprocedures shall apply to eLink(SM) and BlackberryTM by Motient.

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## (c)           Thewarranties regarding the availability of the Motient network set forth in AttachmentG hereto are incorporated herein by reference.

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## (d)           AetherSystems’ programs and data, including data concerning Aether Systems’ end usercustomers, that come into Motient’s custody under this Agreement will beprotected in accordance with Motient’s security procedures applicable to allresellers of the Services and shall be treated in accordance with Motient’spublished privacy policies applicable to its customers and end users of itsnetwork and Services, as in effect from time to time.

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# **11.****          FORCE MAJEURE**

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Motient and its subcontractors do not assume and shallhave no liability under this Agreement for failure to provide, or delay inproviding the Service resulting directly or indirectly from causes beyond thecontrol of Motient or its subcontractors including, but not restricted to, actsof God, or governmental entities, or of the public enemy, strikes, or unusuallysevere weather conditions.

 

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# **12.****          TRAINING AND TECHNICALSUPPORT**

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## (a)           Motientshall make available to Aether Systems, at no charge, a commercially reasonablelevel of initial training on the use of the Services and of eLink (SM) andBlackBerryTM by Motient.

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## (b)           Motientshall continue to provide Aether Systems, at no charge, with “second level”technical assistance, i.e., assistance to Aether Systems with the Motientnetwork and the use of the Services and of the eLink (SM) and B1ackBerryTM byMotient 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 bethe obligation of Aether Systems. Motient’s assistance shall include, without limitation, telephoneconsultation, updates relating to changes and enhancements to the Services, andthe eLink (SM) and B1ackBerryTM by Motient services and reasonable diagnosticservices.

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# **13.****          THIRD PARTY LIABILITY**

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## (a)           AetherSystems warrants that it will inform its end users and subagents of the Serviceof the applicable terms and conditions of this Agreement, as expressed in AttachmentH hereof (which is hereby incorporated by reference), limiting Motient’sliability to such end users or subagents.

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## (b)           Eachparty shall indemnify and hold the other party harmless from any third partyclaim arising out of the gross negligence or willful misconduct of theindemnifying party’s agents, employees or contractors.  The indemnified party shall promptly notifythe indemnifying party in writing of any claim, action, or suit asserted bysuch third party, and shall reasonably cooperate in the defense thereof.  The indemnifying party shall, at itsexpense, defend against such claim, provided that the indemnified party mayparticipate in any such defense.  Theindemnifying party shall have the right to control the defense and anysettlement of such claim.

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## (c)           Bothparties 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) inwhich either party is located; (ii) employer’s liability insurance with limitsof at least $300,000 for each occurrence; (iii) comprehensive automobileliability insurance if the use of motor vehicles is required, with limits of atleast $1,000,000 combined single limit for bodily injury and property damagefor each occurrence; (iv) Commercial General Liability (“CGL”) insurance,including Blanket Contractual Liability and Broad Form Property Damage, with limitsof at least $1,000,000 combined single limit for bodily injury and propertydamage for each occurrence; and (v) and umbrella excess liability policy.  All liability and CGL insurance shalldesignate Motient and its .affiliates as an additional insured.  All such insurance must be primary andrequired to respond and pay prior to any other available coverage, and shall bewith an insurance carrier having an A.M. Best rating of at least A-VII.

 

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# **14.****          CONFIDENTIAL INFORMATION**

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

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## (b)           Nothingin this Agreement shall cause either party to have any rights or licenses inany inventions, patents, trade secrets, trademarks and/or copyrights of theother relating to the subject matter of this Agreement.

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# **15.****          INDEPENDENT RELATIONSHIP**

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Aether Systems and Motient specifically disclaim anypartnership relationship, and this Agreement shall in no way be construed tomake Aether Systems and Motient partners or members of a joint venture.  For the purposes of this Agreement, AetherSystems and Motient shall be deemed to be independent contractors.  Furthermore, in the event Aether Systemselects to sell the Services to the United States government, a state, local ornon-United States government, or to a contractor selling to any of theforegoing government entities, Aether Systems does so at its own option andrisk and agrees that Motient shall have no obligation as a subcontractor orotherwise to such government customers. Aether Systems remains solely and exclusively responsible for compliancewith all statutes, regulations, and clauses governing sales to any suchgovernment customer.  Motient makes norepresentations, certifications, or warranties whatsoever with respect to theability of its goods, or services, or prices to satisfy any such statutes,regulations, or clauses.

 

# **16.****          WARRANTIES**

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Motient warrants that its network is in good workingorder on the date of the Agreement and conforms to Motient’s officiallypublished and publicly available performance information, which is attachedhereto as Attachment G.  Motientwill provide preventative and remedial service to keep its network in, or torestore it to, good working order. Motient does not warrant that the Service will be uninterrupted or thatits operation will be error-free. Subject to the preceding sentences regarding Motient’s network, Motientwarrants that eLink (SM) and BlackBerryTM by Motient will provide functionalitysubstantially in accordance with the functionality of such services ascommercially publicized by Motient; provided, that Motient makes nowarranty with respect to any handheld device or other user terminal or deviceused or usable with these services.

 

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# **17.****          DISCLAIMER**

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

 

# **18.****          EXCLUSIVE REMEDY**

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

 

Without limiting the foregoing,

 

## (a)           Motientwill grant to Aether Systems a service credit in the event of Service outagesas set forth in this section 18.  Noservice-credit will be granted where the Service is interrupted or unavailabledue to the negligence of Aether Systems or to the failure of facilities andequipment provided by Aether Systems or its other communications providers.

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### (i)            Motientshall accrue credit for future Service to Aether Systems in an amount equal tothe actual period of time for which the Service is completely unavailable for aperiod of one hour or more.  Motientshall maintain a log of all such service credits and shall reflect a credit toAether Systems on the next quarterly summary provided to Aether Systemspursuant to section 5(d) hereof.  Theamount of such Service credit shall be determined by reference to AetherSystems’ actual traffic (i.e., aggregate kilobytes used) on the network duringa comparable period prior to the event giving rise to the credit.  The determination of any such Service creditshall take account of the specific geographic area in which the Service outageis demonstrated to have occurred.  Thedetermination of the amount of any Service credits shall be made in Motient’sreasonable sole discretion.

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### (ii)           Wherethe Service remains available but is modified or restricted so as to affectadversely the Service for a period of 24 hours or more, Motient shall provide acredit allowance for future Service. The parties shall negotiate an appropriate credit based on the extentand 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 werecompletely unavailable for that entire 72 hour period and for as long as itcontinues, beginning in the 73rd hour.

 

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### (iii)          No credit allowance will be given where theService is preempted, interrupted, suspended, modified, or restricted for aperiod of less than one (1) hour.

###  

## (b)           Theliability of Motient for any interruption of the Service shall in no eventexceed the credit allowance provided for in this section 18.  Except for such credit allowance, Motientshall not be liable to Aether Systems for any loss or damage incurred by reasonof or incidental to any delay or interruption of the Service.

##  

## (c)           Tothe extent Aether Systems has a credit allowance remaining when the InitialTerm or any extensions or renewals thereof expire, Motient shall monetize andrefund such credits within 90 days; provided, that if Aether Systems hasactually used the entire Capacity Limit, it shall not be entitled to any refundin respect of any remaining Service credits.

##  

# **19.****          LIMITATION OF LIABILITY**

#  

## (a)           Inno event will either party be liable for any indirect, consequential, orspecial damages, or for any lost profits, even if advised of the possibility ofthe same.  In no event will Motient beresponsible for the failure of Aether Systems and/or its equipment and/orservice suppliers to perform their respective responsibilities.  Without limiting the foregoing, Motientshall in no even be liable for.

##  

### (i)            Anyact or omission of Aether Systems or any defect or malfunction in any equipmentor services provided or used by Aether Systems or its service and/or equipmentsuppliers; or

###  

### (ii)           Unlawfulor unauthorized use of Motient’s facilities and services caused by thenegligence or willful misconduct of Aether Systems and/or Aether Systems’customers;

###  

### (iii)          Libel, slander, infringement of copyright, orany other claim based on message content arising from or in connection withmessages transmitted via the Service, unless the libel, slander or infringementresults solely from the gross negligence or willful misconduct of Motient; or

###  

### (iv)          Theunauthorized access to, or alteration, theft, or destruction; of data and/orinformation of Aether Systems by any person, whether through accident orfraudulent means or devices, whether caused by interruption, errors, defects,delays in operation, failure of performance, unless caused solely by the grossnegligence or willful misconduct of Motient; or

###  

### (v)           Anyclaim arising out of a breach in the privacy or security of communicationstransmitted over Motient’s facilities unless such breach arises out of thegross negligence or willful misconduct of Motient;

###  

### (vi)          Changesin any of Motient’s facilities, operations or procedures required by any othergovernmental authority or entity which render any facilities

 

13

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

###  

## (b)           Motient’sliability for any other damages asserted by Aether Systems under this section19 and section 20 shall be limited to Aether Systems’ actual damages due toMotient’s negligence or willful acts and shall in no event exceed $[*]peroccurrence, excluding any Service credits as provided in section 18 of thisAgreement.

##  

## (c)           Tothe extent that any Service or facilities provided hereunder are provided bythird parties pursuant to arrangement with Motient, the disclaimer of orlimitations on Motient’s liability, as stated in this section 19, shall extendfully to such third parties.

##  

# **20.****          INDEMNIFICATION**

#  

## (a)           Motientshall in no event be liable to Aether Systems, and provided that Motientcomplies with the provisions of paragraph (b) of this section 20, AetherSystems shall indemnify and hold harmless Motient against loss and/or liabilityfor any of the following, subject to the limitation set forth in the firstsentence of section 19(a) of this Agreement and subject to a cap of $[*] peroccurrence, excluding any prepayment of invoice obligations:

##  

### (i)            Thecontent or addressing of any message transmitted by Aether Systems or any claimof libel, slander, or infringement of copyright against Motient arising from orin connection with the transmission of messages via the Service unless thelibel, slander or infringement results solely from the gross negligence orwillful misconduct of Motient; or

###  

### (ii)           Anyintentional misconduct or gross negligence of any other entity furnishingproducts or services, not authorized by Motient, which are used by AetherSystems in connection with the Service; or

###  

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

###  

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

###  

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

 

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* Confidential information.  Information has been redacted.

 

14

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## Motient, resist and assume responsibility for the defense of suchlitigation, provided that Motient may, at its sole expense, participate in thedefense of any such claim, action or suit. Aether Systems shall have the right to control the defense and anysettlement 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 beincurred by or rendered against Motient in connection therewith.

##  

## (c)           AetherSystems shall in no event be liable to Motient, and provided that AetherSystems complies with the provisions of paragraph (e) of this section 20,Motient shall indemnify and hold harmless Aether Systems against loss and/orliability for any of the following, subject to the limitations set forth insection 19(a):

##  

### (i)            Anyintentional misconduct or gross negligence of any other entity furnishingproducts or services, not authorized by Aether Systems, which are used byMotient in connection with the Service that is provided to Aether Systems; or

###  

### (ii)           anyloss, liability, damage, or expense caused to Aether Systems and/or itsfacilities by the negligence or willful acts or omissions of Motient and by itsequipment and/or service vendors in connection with their provision ofequipment or services to Motient for the Service.

###  

## (d)           AetherSystems shall in no event be liable to Motient, and Motient shall, withoutlimitation, indemnify and hold harmless Aether Systems against loss and/orliability for infringement of patents, trademarks, or copyrights currentlyfiled, arising from the combination or use of Aether Systems-providedfacilities with facilities or services provided by Motient or any other entityacting on Motient’s behalf or at Motient’s request, including Motient’s serviceand/or equipment vendors.

##  

## (e)           AetherSystems shall promptly notify Motient in writing of any claim, action or suitasserted against Aether Systems based upon the events specified in paragraphs(c) and (d) of this section 20 and shall reasonably cooperate with Motient inthe defense thereof.  Motient shall, atits expense and using counsel acceptable to Aether Systems, resist and assumeresponsibility for the defense of such litigation, provided that Aether Systemsmay, at its sole expense, participate in the defense of any such claim, actionor suit.  Motient shall have the rightto control the defense and any settlement of such claim, action, or suit.  Motient shall pay all expenses and satisfyall judgments, including reasonable attorneys’ fees and litigation expenses,which may be incurred by or rendered against Aether Systems in connectiontherewith.

##  

# **21.****          NOTICES**

#  

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

 

15

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certified mail, return receipt requested, and addressedto the parties at the addresses set forth below or to such other address asshall, from time to time, be supplied by any party to the other party by likenotice, 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 andpermitted assigns of the parties hereto. Neither party shall assign this Agreement without the other party’sprior written consent; providedthat either party may assign thisAgreement to an entity that is a parent or subsidiary organization or other affiliateunder common control, without the other party’s consent but shall providethirty (30) days’ advance notice of such permitted assignment.

 

If any provision of this Agreement or the applicationthereof to any party or circumstance shall be determined by any court ofcompetent jurisdiction to be invalid and unenforceable to any extent, theremainder of this Agreement or the application of such provision to such personor circumstance, other than-those as to which it is so determined invalid orunenforceable, shall not be affected thereby, and each provision hereof shallbe 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 hasarisen.

 

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

 

16

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regarding payment for Services and taxes in section 5,section 13, section 14, section 16, section 17, section 18, section 19, section20, and this paragraph regarding survival of Agreement provisions in thissection 22, shall survive the termination or expiration of this Agreement forany reason.

 

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

 

THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THEPARTIES HEREUNDER, SHALL BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE GOVERNEDBY THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVING EFFECT TO THEPRINCIPLES OF CONFLICT OF LAWS THEREOF. THE PARTIES AGREE THAT ANY AND ALL CAUSES OF ACTION, WHETHER OR NOTARISING UNDER THIS AGREEMENT, BETWEEN THE PARTIES SHALL BE BROUGHT EXCLUSIVELYIN THE CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA, OR IN THE U.S. DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA.

 

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

 

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

 
| **AETHER SYSTEMS, INC.** | **MOTIENT COMMUNICATIONS  COMPANY** |
|--------------------------|-------------------------------------|
|                     |                                |
|                     |                                |
| By:                      |                                |   | By: |   |   |
|                     | Name                                |   | Name |
|                     | Title                               |   | Title |
|                          |                                     |  |  |  |  |

 

17

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**ATTACHMENT A**

 

**Prices**

 

[*]

 

 

----

*  Confidentialinformation.  Information has beenredacted.

 

----

 

**ATTACHMENTB**

 

**eLink(SM) WIRELESS EMAIL SERVICE**

** **

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

 

•      Send andreceive email messages

•      Manage yourschedule, tasks, and contacts

•      Increase yourproductivity

 

**FEATURES**

 

•      Same emailaddress as your Internet POP or IMAP compliant desktop email, so messages looklike they’re coming from your desktop

•      Personalwireless email address (username@2way.net)

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

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

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

•      Text messagingto fax machines with fax display name

•      Pagingfunction with toll-free number and PIN

•      24 x 7customer service

 

eLink messagesflow through the Motient network, the nation’s first and largest wirelesstwo-way data network.  Its coverage isunmatched in the U.S. wireless industry, touching more than 220 million peopleon the street and deep inside buildings. Unlike other wireless networks, the Motient network was built to servicenot only on-the-go users, but also those in office towers and corporatecampuses.

 

With full two-waycommunications capabilities, you can create, receive, and answer messages rightfrom the palm of your hand.  View themon a clear and crisp backlit screen. Type on a standard QWERTY keyboard. The device recharges quickly and runs on a single NiMH or alkalinebattery.

 

The Motientnetwork is a packet data network. Wireless packet data networks are similar to cellular networks at a highlevel.  However, wireless data networkswere built for data communication, not voice.  Packet data networks are designed to segment data into packets, muchlike the X.25 standards specified for wireline networks. The actual data isbroken up into packets of either 252 or 512 bytes and then sent over thenetwork.  What differentiates packetdata networks from other networks is that users are charged only for the datathat actually passes, not for the time connected.  This allows users to always be on.  Packet data networks are not optimal for handling large filetransfers (more than 10K).

 

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**ATTACHMENT C**

 

**BlackBerry(TM) by Motient Wireless EmailService**

 

BlackBerryTM byMotient is a wireless solution that meets the numerous challenges of mobileemail – access, security, portability, enterprise manageability, integration,and cost.  Specially designed forcorporate environments using Microsoft ® Exchange, BlackBerry combines wirelessemail and Personal Information Manager (PIM) capabilities with the RIM WirelessHandheldTM and the nations first and largest data network.

 

**Features**

 

•      Send, receive,forward and reply to email messages

•      Single mailboxintegration with only one email address

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

•      End-to-endsecurity between corporate email system and handheld

•      Nationwidewireless connectivity

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

 

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

 

**BlackBerryTM Software**

 

The BlackBerryEnterprise Server is the centerpiece of the BlackBerryTM by Motient emailsolution.  Email redirection and messageencryption occur at the server rater than the desktop.  It provides centralized administration,performance, monitoring, configurable handheld security attributes, and assettracking tools.

 

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

 

BlackBerry isdesigned to provide a high level of security. Encryption occurs between the handheld and corporate email system toensure message integrity.  BlackBerryincorporates Triple DES encryption technology to meet stringent corporatesecurity 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**

 

[*]

 

 

----

*  Confidentialinformation.  Information has beenredacted.

 

----

 

**ATTACHMENT F**

 

**Service Level Commitments and Escalation Procedures**

 

**Purpose–** The purpose of this document is to provide on overview ofthe Motient Network Operations Center (MNOC) Service Level Agreementprocesses.  The MNOC works closely withthe Motient Customer Support Center. Our combined efforts are to provide the highest level of customersatisfaction.

 

**Objective–** The objective of the MNOC is to manage and maintain theperformance and availability of the Motient network.  The Motient network performance objective is to consistentlymaintain network availability at 99.99%. The availability requirement includes both scheduled and unscheduledoutage minutes.  The foregoing performanceobjective is subject to the commitment regarding Network Availability set forthin Attachment G to the Agreement.

 

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

 

**NetworkManagement –** The Motient network management systems aredesigned with products and tools that work in concert with one another toprovide integrated, end-to-end network management and control.  The systems are integrated and provide aview to various technologies, physical platforms, Operating systems andtelecommunications facilities.  Thisintegration gives Motient the capability to monitor and manage the entirenetwork from base station components to the modem at the customer’s hostcomputer.  Extensive back-up facilitiesenable Motient to restore network functions quickly, thus minimizing impact tothe customer.

 

**HostConnectivity –** Motient’s NetLinks offering provides aportfolio of high availability end-to-end connectivity offerings to the linkcustomer 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 dialrestoration.  Motient offers variousconnectivity options frame relay, VPN and the Internet.  Service levels are established by producttype.

 

**RFInfrastructure –** All base stations are equipped with remotediagnostic capabilities which allow personnel at the Motient Network ManagementCenter to remotely monitor base station conditions, initiate performance testsand dispatch repair technicians whenever performance drops below optimallevels.  Motient contracts a nationwidenetwork of highly trained and experienced field service personnel in a businesspartnership with Motorola to service and restore the base stations.  This provides for the best maintenanceresponse and lowest mean-time-to-restore (MTTR) in case of a base stationfailure.

 

**ProblemManagement –** In most instances Aether problem reportingshould be directed to the Motient Customer Support Center.  Motient’s NOC will pro-actively notify ourCustomer Support Center of any defects that cause an interruption to majornetwork components or large

 

----

 

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

 

**Problem-Documentation–**Both Motient and Aether will enter all problem relatedcalls as problem entries into their respective problem tracking systems.  It will be a priority of both organizationsto collect as much information as possible to assist iii problem tracking andresolution.  Motient will use the ActionRequest System by Remedy Corporation for problem tracking.  A unique number will be assigned to eachproblem by both Aether and Motient. These problem log numbers will be cross referenced in their respectivetracking data bases.

 

**ProblemIdentification –** Motient has various tools perform problemnotification and identification to the MNOC and CSC.  There are various opportunities for the various problems to beidentified during the course of business and network traffic.  All problems should be identified andcommunicated to receive appropriate resolution.  Aether Customer Service group will be, in most cases, the firstpoint at which a problem is identified.

 

**ProblemAssignment –** When a problem is under investigation, Motientwill take assignment.  In most cases,normal problems will be assigned and managed by the Customer SupportCenter.  Upon a host or session failure,MNOC will take immediate assignment of the problem.  A problem severity assignment will be included with the assignedproblem log number.  The date and timeof the beginning of the service interruption and all relative information willbe documented.  The Motient NOC willcontinue to work the problem to resolution. After resolution, a post-mortem will be held to identify “rootcause.”  There are opportunities whereAether will need to continue to worse with Motient to determine the defect.

 

**CoverageQuestions –** When reporting coverage problems regarding aspecific Aether device, Motient will require the following information:

 

1.     Name of the Aether Customerand its representative’s name.

2.     Aether wireless device LLIand serial number.

3.     Street address (or nearestmajor intersection), city, state, and zip where the device encountered acoverage problem if available.  When inbuilding, what level (below ground, ground level, above ground)?

4.     Has the unit worked in thearea before?

5.     Are other Aether devicesworking in the area?

6.     When did the Aether devicestop working?

 

When coveragerequirements change or there is a requirement for additional coverage, Aetherwill submit request through the Motient Project Manager.

 

**HostLine Problems — Class of Service –** When reporting hostconnectivity problems, Motient will require the following information:

 

1.     Name of the Aether TechnicalSupport representative

 

----

 

2.     Motient Operations will workwitty Aether Technical support and Network Operations groups to reactivate thehost connectivity based on class-of-service of connectivity.

 

**Class-of-Serviceof Connectivity –** High Availability Frame has dial backupcapability and Network Operations will work with the customer to restoreservice in the case of a frame outage. Notification will be made to the Aether that they are working on dialbackup.  Standard Frame does not havedial backup and the connectivity will be down until the problem is resolvedwith connectivity a call will be place to Aether that this circuit isdown.  X.25 Dialup Motient will workwith the third party vendor to ensure that connectivity is brought backup.  Motient will notify Aether when connectivityis down.  Internet connection does-nothave any type of backup.  It will be upto the customer to ensure that they have connectivity to their ISP and up toMotient’s firewall.  Motient will notifyAether that the protocol session has dropped. In either case, if Motient Operations sees the IP connectionde-activated, Motient Operations will contact the Aether Technical Supportrepresentative.

 
| **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                   |

 

**ProblemStatus Reports & Resolution –** When a problem has beenresolved, the resolving group will communicate the date and time of recovery ofthe service interruption and the reason or root cause of the serviceinterruption.  The problem resolutioncall will contain all of the information required and available to understandthe nature and cause of the problem. All problem updates will be handled by Motient contacting the AetherCustomer Service group via telephone and providing the update.  Aether Customer Service will ensure therestoral notification is distributed internally and externally to affected endusers.

 

----

 

**Escalation& Response Times –** Aether technical support and customerservice personnel will be in contact with Motient representatives.  It is expected that concerns about aspecific problem will be fully understood and directed to the appropriate individualsso that updates and resolution can be provided based upon the agreed severitylevels.  If the update cycle identifiedin the Problem Severity Section is not met, Aether or Motient personnel mayescalate a problem according to the table below.  In addition, if either group believes a problem requiresadditional resources or management attention, then the next course of action isdetermined by the escalation schedule presented below.  At their discretion, either party may wishto escalate a problem within the other party’s organization at any time.  Escalation can be accomplished by callingthe 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                |

 

**ChangeManagement –** Planned service interruptions may be necessaryto perform maintenance on equipment or to install software or hardwarerevisions/updates.  Both parties agreeto provide each other with at least one week notification of planned outagesgreater than 15 minutes.  At the time ofsuch notification, Motient will advise Aether of any potential impact onMotient network components and network performance of the planned change.  The exact schedule for change implementationwill 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 beforeimplementation of the change.  At times,it may be necessary to install emergency changes prior to notification, inwhich case, notification will be given as soon as possible, afterimplementation of the change.  Motientwill communicate notification to the Aether Customer Service group by telephoneto the Aether representative listed in Appendix A.1, Contacts andEscalation.  Notification, from Aether,will be communicated to the Motient Representative listed in Appendix A.1,Contacts and Escalation.  An updatedlist will be provided whenever any changes in personnel or contact numbersoccur.  The contact in each company willensure notification of change is given to the correct representatives in theirrespective companies.

 

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

 

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**Appendix A.1**

 

**Contracts and Escalation**

 

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**ATTACHMENT G**

 

**Network Availability**

 

The Motientnetwork and the Service will not be available at all times.  Service for all on-street or in-buildinglocations within a geographic area is impossible.  Motient is not responsible for the security of data duringtransmission and Motient is not responsible for any transmission errors orcorruption of data or for the content or availability of any add-onservice(s).  The Service is provided “ASIS” and “AS AVAILABLE” and Motient does not warrant uninterrupted Service orerror-free operation.

 

**NetworkAvailability –** The Motient message switches, network controlprocessors, and RF base stations in aggregate shall be operational not lessthan 99% during each month.  Thiswarranty covers unavailability caused by phone line failures internal to theMotient Network, but excludes unavailability caused by phone line and/orInternet connection failures connecting Aether Systems’ (or its end usercustomers’) host computer.

 

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

 

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

 

Where:

 

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

 

SU’s  = Number of Subscriber units for eachnetwork element

 

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

 

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

 

•      Maintenancescheduled by Motient not less than 24 hours in advance for the purpose ofrepair, maintenance, replacement, upgrade or other similar purpose; or

 

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

 

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

 

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•      Any outagewhich does not materially disrupt the use of Service by Aether Systems or itsend user customers.

 

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**ATTACHMENT H**

 

**Certain Terms and Conditions**

 

1.     Nature and Control ofMotient Network:  Aether Systems isremarketing the MotientSM Services to its customers in conjunctionwith database information services and/or other value-added services.  Motient controls the radio network whichenables communication and provides access in accordance with FCC rules andregulations to and through Aether System on a shared basis.  All customers of Aether Systems shall usethe MotientSM network so as not to cause undue interference with anyother users of the MotientSM network.

 

2.     Security:  Customers of Aether Systems are responsiblefor developing and/or maintaining procedures, external to the MotientSMnetwork, to safeguard programs and data, and for the backup and reconstructionof lost data, programs or procedures. Consequently, customers of Aether Systems release Motient from allliability for the loss or alteration of programs or data or their acquisitionby another party, except for Motient’s failure to implement those aspect’s ofsecurity procedures which are under Motient’s direct control.  Aether Systems assumes no responsibility orliability for customer activities beyond informing its customers of Motient’ssystem requirements and permitting the disconnection of customers violatingsuch requirements.  Motient will not beresponsible for transmission errors, corruption of data or for the security ofdata during transmission via public telecommunications facilities.

 

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

 

4.     Limitation of Liability:  Aether Systems will inform its customersthat the following provisions govern such customer’s rights against Motient inthe event that the customer experiences a partial or total failure, malfunctionor defect in any of the Services provided by Motient under this Agreement.  In no event shall Motient be liable forspecial, incidental or consequential damages (including without limitation,lost profits, lost savings, incidental damages or other economic consequentialdamages, 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 thirdparty claims.

 

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**AMENDMENTto the TERRESTRIAL NETWORK RESELLER AGREEMENT**

 

**betweenMOTIENT COMMUNICATIONS INC. and AETHER SYSTEMS INC.**

 

THIS AMENDMENT (the “Amendment”) to the TerrestrialNetwork Reseller Agreement dated November 29, 2000 (the “Agreement”) betweenMOTIENT COMMUNICATIONS INC. (“MOTIENT “) and AETHER SYSTEMS, INC. (“AETHER”) isentered into as of 8/17, 2001 (the “Amendment Effective Date”) by and betweenMotient and Aether.

 

**WITNESSETH:**

 

WHEREAS, MOTIENT and AETHER entered into the Agreementand 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 AETHERagree as follows:

 

**The following shall be added as a newsection 5(f) of the Agreement:**

 

Motient shall provide anoptional Messaging Service Plan for eLinkSM, BlackBerryTM, or othermutually agreed upon messaging-based services; provided, that the airtime usage profile for any such services, as used or contemplated to be used bythe end user, does not exceed [*]. Notwithstanding Attachment A, the prices for such Messaging Service Planshall be as follows:

 
| ***Network Registration Fee:*** | Waived |
|---------------------------------|--------|
|                            |   |   |
| ***Volume Commitments***:       |   |   |
|                            |   |   |
| **Quantity**                    |   | **Base Wholesale Price** |
|                            |   |   |
| [*]                             |   | [*] |
|                                 |        |  |  |  |

 

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

 

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

 

[*]

 

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

 

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* Confidential Information. Information has been redacted.

 

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

 

[*]

 

IN WITNESS WHEREOF, MOTIENT and AETHER have caused thisAmendment 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 |   |
|                           |                                  |  |  |  |  |  |  |  |  |  |

 

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* ConfidentialInformation.  Information has beenredacted.

 

19

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