SERVICES PROVIDED BY MOTIENT OR ANY OTHER ENTITY ACTING ON
MOTIENT'S BEHALF OR AT MOTIENT'S REQUEST, INCLUDING MOTIENT'S SERVICE AND/OR
EQUIPMENT VENDORS.
(E)
PNC SHALL PROMPTLY NOTIFY MOTIENT IN WRITING OF ANY CLAIM, ACTION
OR SUIT ASSERTED AGAINST PNC BASED UPON THE EVENTS SPECIFIED IN PARAGRAPHS (C)
AND (D) OF THIS SECTION 3.6 AND SHALL REASONABLY COOPERATE WITH MOTIENT IN THE
DEFENSE THEREOF. MOTIENT SHALL, AT ITS EXPENSE AND USING COUNSEL ACCEPTABLE TO
PNC, RESIST AND ASSUME RESPONSIBILITY FOR THE DEFENSE OF SUCH LITIGATION,
PROVIDED THAT PNC MAY, AT ITS SOLO EXPENSE, PARTICIPATE IN THE DEFENSE OF ANY
SUCH CLAIM, ACTION OR SUIT. MOTIENT SHALL HAVE THE RIGHT TO CONTROL THE DEFENSE
AND ANY SETTLEMENT OF SUCH CLAIM, ACTION OR SUIT. MOTIENT SHALL PAY ALL EXPENSES
AND SATISFY ALL JUDGMENTS, INCLUDING REASONABLE ATTORNEYS' FEES AND LITIGATION
EXPENSES, WHICH MAY BE INCURRED BY OR RENDERED AGAINST PNC IN CONNECTION
THEREWITH.
(F)
INSURANCE: BOTH PARTIES SHALL MAINTAIN AT ALL TIMES DURING THE
TERM, INCLUDING ANY RENEWAL TERM, OF THIS AGREEMENT (I) WORKER'S COMPENSATION
INSURANCE AS PRESCRIBED BY THE LAW OF THE STATES) IN WHICH EITHER PARTY IS
LOCATED; (II) EMPLOYER'S LIABILITY INSURANCE WITH LIMITS OF AT LEAST $300,000
FOR EACH OCCURRENCE; (III) COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE IF THE
USE OF MOTOR VEHICLES IS REQUIRED, WITH LIMITS OF AT LEAST $1,000,000 COMBINED
SINGLE LIMIT FOR BODILY INJURY AND PROPERTY DAMAGE FOR EACH OCCURRENCE; (IV)
COMMERCIAL GENERAL LIABILITY ("CGL') INSURANCE, INCLUDING BLANKET CONTRACTUAL
LIABILITY AND BROAD FORM PROPERTY DAMAGE, WITH LIMITS OF AT LEAST $1,000,000
COMBINED SINGLE LIMIT FOR BODILY INJURY AND PROPERTY DAMAGE FOR EACH OCCURRENCE;
AND (V) AND UMBRELLA EXCESS LIABILITY POLICY. ALL LIABILITY AND CGL INSURANCE
SHALL DESIGNATE MOTIENT AND ITS AFFILIATES AS AN ADDITIONAL INSURED. ALL SUCH
INSURANCE MUST BE PRIMARY AND REQUIRED TO RESPOND AND PAY PRIOR TO ANY OTHER
AVAILABLE COVERAGE, AND SHALL BE WITH AN INSURANCE CARRIER HAVING AN A.M. BEST
RATING OF AT LEAST A-VII.
3.7
FORCE MAJEURE:
Neither party shall be liable for any failure of performance due to causes
beyond its control, including, but not limited to, acts of God, fires, floods or
other catastrophes; national emergencies, insurrections, riots or wars; strikes,
lockouts, work stoppages or other labor difficulties; and any law, order,
regulation or other action of any governing authority or agency thereof.
ARTICLE FOUR
TERMINATION AND REMEDIES
4.1
TERMINATION BY MOTIENT:
Motient may suspend or terminate the provision of the Service hereunder to PNC
and/or terminate this Agreement without any liability of Motient to PNC or any
third party in the event of a default by PNC. PNC shall be deemed to be in
default under any of the following circumstances:
(A)
PNC FAILS TO PAY ALL UNDISPUTED CHARGES HEREUNDER, INCLUDING,
WITHOUT LIMITATION, ALL CHARGES BASED ON THE MINIMUM ANNUAL TAKE RATES, WITHIN
FIFTEEN (15) DAYS AFTER RECEIPT OF NOTICE FROM MOTIENT THAT THE SAME ARE
OVERDUE;
(B)
ANY COURT, ADMINISTRATIVE AGENCY, OR OTHER GOVERNMENTAL AUTHORITY
HAVING JURISDICTION OVER PNC FINDS THAT PNC'S USE OF THE SERVICE IS IN VIOLATION
OF