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