of the public enemy, strikes, or unusually severe
weather conditions.
9
12.
TRAINING AND TECHNICAL SUPPORT
(A)
MOTIENT SHALL MAKE AVAILABLE TO AETHER SYSTEMS, AT NO CHARGE, A
COMMERCIALLY REASONABLE LEVEL OF INITIAL TRAINING ON THE USE OF THE SERVICES AND
OF ELINK (SM) AND BLACKBERRYTM BY MOTIENT.
(B)
MOTIENT SHALL CONTINUE TO PROVIDE AETHER SYSTEMS, AT NO CHARGE,
WITH "SECOND LEVEL" TECHNICAL ASSISTANCE, I.E., ASSISTANCE TO AETHER SYSTEMS
WITH THE MOTIENT NETWORK AND THE USE OF THE SERVICES AND OF THE ELINK (SM) AND
B1ACKBERRYTM BY MOTIENT SERVICES BY AETHER SYSTEMS AND/OR ITS END USER CUSTOMERS;
PROVIDED, THE PARTIES ACKNOWLEDGE AND AGREE THAT ALL "FIRST LEVEL" ASSISTANCE,
I.E., CUSTOMER SUPPORT AND ASSISTANCE TO AETHER SYSTEMS' END USER CUSTOMERS,
SHALL BE THE OBLIGATION OF AETHER SYSTEMS.
MOTIENT'S ASSISTANCE SHALL INCLUDE,
WITHOUT LIMITATION, TELEPHONE CONSULTATION, UPDATES RELATING TO CHANGES AND
ENHANCEMENTS TO THE SERVICES, AND THE ELINK (SM) AND B1ACKBERRYTM BY MOTIENT
SERVICES AND REASONABLE DIAGNOSTIC SERVICES.
13.
THIRD PARTY LIABILITY
(A)
AETHER SYSTEMS WARRANTS THAT IT WILL INFORM ITS END USERS AND
SUBAGENTS OF THE SERVICE OF THE APPLICABLE TERMS AND CONDITIONS OF THIS
AGREEMENT, AS EXPRESSED IN ATTACHMENT H HEREOF (WHICH IS HEREBY INCORPORATED BY
REFERENCE), LIMITING MOTIENT'S LIABILITY TO SUCH END USERS OR SUBAGENTS.
(B)
EACH PARTY SHALL INDEMNIFY AND HOLD THE OTHER PARTY HARMLESS FROM
ANY THIRD PARTY CLAIM ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF THE INDEMNIFYING PARTY'S AGENTS, EMPLOYEES OR CONTRACTORS.
THE INDEMNIFIED
PARTY SHALL PROMPTLY NOTIFY THE INDEMNIFYING PARTY IN WRITING OF ANY CLAIM,
ACTION, OR SUIT ASSERTED BY SUCH THIRD PARTY, AND SHALL REASONABLY COOPERATE IN
THE DEFENSE THEREOF.
THE INDEMNIFYING PARTY SHALL, AT ITS EXPENSE, DEFEND
AGAINST SUCH CLAIM, PROVIDED THAT THE INDEMNIFIED PARTY MAY PARTICIPATE IN ANY
SUCH DEFENSE.
THE INDEMNIFYING PARTY SHALL HAVE THE RIGHT TO CONTROL THE
DEFENSE AND ANY SETTLEMENT OF SUCH CLAIM.
(C)
BOTH PARTIES SHALL MAINTAIN AT ALL TIMES WHILE THIS AGREEMENT IS
IN FORCE (I) WORKER'S COMPENSATION INSURANCE AS PRESCRIBED BY THE LAW OF THE
STATE(S) 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.
10
14.
CONFIDENTIAL INFORMATION
(A)
EACH PARTY AGREES THAT IT WILL NOT DISCLOSE THE OTHER'S
CONFIDENTIAL INFORMATION AND TRADE SECRETS, INCLUDING BUT NOT LIMITED TO