CONSTRUED AS A WAIVER OF ANY SUBSEQUENT BREACH OF DEFAULT OF A
SIMILAR NATURE, OR AS A WAIVER OF ANY PROVISIONS, RIGHTS, OR PRIVILEGES
HEREUNDER. ANY WAIVER UNDER THIS AGREEMENT MUST BE IN WRITING.
(B)
IN THE EVENT THAT ANY ONE OR MORE OF THE PROVISIONS OF THIS
AGREEMENT SHALL BE HELD BY A COURT OF COMPETENT JURISDICTION TO BE INVALID OR
UNENFORCEABLE IN ANY RESPECT, SUCH INVALIDITY AND UNENFORCEABILITY SHALL NOT
AFFECT ANY OTHER PROVISION OF THIS AGREEMENT, AND THE AGREEMENT SHALL BE
CONSTRUED AS THOUGH SUCH INVALID AND/OR UNENFORCEABLE PROVISION(S) HAD NEVER
BEEN CONTAINED HEREIN.
5.8
CONFIDENTIALITY:
(A)
EACH PARTY AGREES THAT IT WILL NOT DISCLOSE THE OTHER'S
CONFIDENTIAL INFORMATION AND TRADE SECRETS, INCLUDING BUT NOT LIMITED TO DATA,
SOFTWARE, DOCUMENTATION, CLIENT NAMES AND ADDRESSES, AND ALL OTHER PROPRIETARY
INFORMATION, TO PERSONS OTHER THAN ITS EMPLOYEES AND SUBCONTRACTORS WHO ARE
REQUIRED TO HAVE SUCH INFORMATION FOR THE FURTHERANCE OF THE PURPOSES OF THIS
AGREEMENT PROVIDED THAT SUCH EMPLOYEES AND SUBCONTRACTORS MUST BE BOUND BY AN
OBLIGATION OF CONFIDENTIALITY THAT IS NO LESS RESTRICTIVE THAT THAT CONTAINED IN
THIS AGREEMENT. EACH PARTY SHALL TAKE ALL STEPS REASONABLY NECESSARY TO PROTECT
THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY FROM UNAUTHORIZED DISCLOSURE.
THIS OBLIGATION OF CONFIDENTIALITY SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT. UPON TERMINATION OF THIS AGREEMENT, THE RECEIVING PARTY SHALL RETURN
OR DESTROY THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION, AT THE REQUEST OF
THE DISCLOSING PARTY.
(B)
NOTHING IN THIS AGREEMENT SHALL CAUSE EITHER PARTY TO HAVE ANY
RIGHTS OR LICENSES IN ANY INVENTIONS, PATENTS, TRADE SECRETS, TRADEMARKS END/OR
COPYRIGHTS OF THE OTHER RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
5.9
MODIFICATION:
No amendment or modification to this Agreement shall be valid unless made in
writing and signed by the authorized representatives of the parties. As to
Motient, the "authorized representatives" means both Motient's (a) General
Counsel and (b) Chief Executive Officer, President, or any Vice President.
5.10
HEADINGS:
The headings and numbering of paragraphs in this Agreement are for convenience
only and shall not be construed to define or limit any of the terms herein or
affect the meaning of interpretation hereof.
5.11
ENTIRE AGREEMENT:
This Agreement, including all Appendices hereto, constitutes the entire
agreement between the parties hereto and supersedes all prior oral or written
agreements, representations, statements, negotiations, understandings,
proposals, and undertakings with respect to the subject matter hereof.
IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS PRIVATE NETWORK SATELLITE
SERVICES AGREEMENT, EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE.
MOTIENT SERVICES INC.
Signature
Title
Name
Date
AETHER SYSTEMS,INC.
Signature
Title
Name
Date
EXHIBIT A
Service Level Commitments and Escalation Procedures
Operations and Maintenance Responsibility - Motient will be responsible for
providing the appropriate power and bandwidth to support Aether authorized
carriers. All Aether carriers will be documented by Motient approved Carrier
Transmission Authorization forms. Motient will provide an RF system availability
(includes ground system and satellite) of 99.98% In the event that it becomes
necessary to schedule downtime for the satellite