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