HOUR OR MORE. MOTIENT SHALL MAINTAIN A LOG OF ALL SUCH SERVICE
CREDITS AND SHALL GRANT A CREDIT TO PNC ON THE NEXT QUARTERLY SUMMARY PROVIDED
TO PNC PURSUANT TO SECTION 2.1(C) ABOVE, THE AMOUNT OF SUCH SERVICE CREDIT SHALL
BE DETERMINED BY REFERENCE TO THE DIFFERENCE BETWEEN (I) THE AMOUNT OF SERVICE
CAPACITY THEN REQUESTED TO BE USED BY PNC ("ACTIVE CAPACITY") AND (II) THE
SERVICE CAPACITY ACTUALLY PROVIDED TO PNC, FOR EVERY 24 HOUR PERIOD DURING WHICH
SUCH SERVICE OUTAGE OR OTHER DEFICIENCY EXISTED. THE SERVICE CREDIT AMOUNT WILL
BE BASED ON THE PRICE PER WATT AND THE PRICE PER KILOHERTZ SET FORTH IN SECTION
2.1(A) ABOVE, DIVIDED BY 365 DAYS.
(2)
WHERE THE SERVICE REMAINS AVAILABLE BUT IS MODIFIED OR RESTRICTED
SO AS TO AFFECT ADVERSELY THE SERVICE FOR A PERIOD OF 24 HOURS OR MORE, MOTIENT
SHALL PROVIDE A CREDIT ALLOWANCE FOR FUTURE SERVICE. THE PARTIES SHALL NEGOTIATE
AN APPROPRIATE CREDIT BASED ON THE EXTENT AND DURATION OF SUCH MODIFICATION OR
RESTRICTION HOUR. [*]
(3)
NO CREDIT ALLOWANCE WILL BE GIVEN WHERE THE SERVICE IS PREEMPTED,
INTERRUPTED, SUSPENDED, MODIFIED, OR RESTRICTED FOR A PERIOD OF LESS THAN ONE
(1) HOUR.
(B)
THE LIABILITY OF MOTIENT FOR ANY INTERRUPTION OF THE SERVICE SHALL
IN NO EVENT EXCEED THE CREDIT ALLOWANCE PROVIDED FOR IN THIS SECTION 3,3. EXCEPT
FOR SUCH CREDIT ALLOWANCE, MOTIENT SHALL NOT BE LIABLE TO PNC FOR ANY LOSS OR
DAMAGE INCURRED BY REASON OF OR INCIDENTAL TO ANY DELAY OR INTERRUPTION OF THE
SERVICE.
(C)
TO THE EXTENT PNC HAS A CREDIT ALLOWANCE REMAINING WHEN THE
INITIAL TERM OR ANY EXTENSIONS OR RENEWALS THEREOF EXPIRE, MOTIENT SHALL
MONETIZE AND REFUND SUCH CREDITS WITHIN 90 DAYS; PROVIDED, THAT IF PNC HAS
ACTUALLY USED THE ENTIRE CAPACITY LIMIT, IT SHALL NOT BE ENTITLED TO ANY REFUND
FOR REMAINING SERVICE CREDITS.
3.4
WARRANTY:
(A)
MOTIENT WARRANTS THAT THE SERVICE WILL OPERATE IN ACCORDANCE WITH
THE STANDARDS SET FORTH IN THE DOCUMENT ENTITLED "SERVICE LEVEL COMMITMENTS AND
ESCALATION PROCEDURES" ATTACHED AS EXHIBIT A TO THIS AGREEMENT. THE COMMITMENT
WITH RESPECT TO NETWORK AVAILABILITY SET FORTH IN SUCH DOCUMENT SHALL BE
MEASURED ON A ROLLING TWELVE (12) MONTH BASIS. THE FOREGOING WARRANTIES ARE
SUBJECT TO PNC UTILIZING THE SERVICE IN ACCORDANCE WITH MOTIENT'S PUBLISHED USER
MANUALS AND OPERATIONAL GUIDELINES WHICH ARE MADE AVAILABLE TO ALL OF ITS
PRIVATE NETWORK CUSTOMERS AND RESELLERS.
(B)
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, MOTIENT MAKES NO
WARRANTY REGARDING THE PROVISION OF THE SERVICE, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3.5
LIMITATION OF LIABILITY:
(A)
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, OR SPECIAL DAMAGES, OR FOR ANY LOST PROFITS, EVEN IF ADVISED OF
THE POSSIBILITY OF THE SAME. IN NO EVENT WILL MOTIENT BE RESPONSIBLE FOR THE
FAILURE OF PNC AND/OR ITS EQUIPMENT AND/OR SERVICE SUPPLIERS TO PERFORM THEIR
RESPECTIVE RESPONSIBILITIES. WITHOUT LIMITING THE FOREGOING, MOTIENT SHALL IN NO
EVENT BE LIABLE FOR:
(1)
ANY ACT