Exhibit 4.33
THAILAND - INDONESIA - SINGAPORE CABLE NETWORK
CONSTRUCTION & MAINTENANCE AGREEMENT
TELKOM REF. NO. PKS.211/HK.910/UTA-00/2002
DATED NOVEMBER 27, 0000
XXXXXXXX - XXXXXXXXX - XXXXXXXXX CABLE NETWORK
CONSTRUCTION & MAINTENANCE AGREEMENT
TELKOM Ref. No. PKS, 211/HK.910/UTA-00/2002
THIS AGREEMENT, made and entered into this 27th day of November 2002, between
and among the Parties signatory hereto (hereinafter collectively referred to as
the "Parties" and individually referred to as the "Party"), which Parties are
identified in Schedule A,
WITNESSETH:
WHEREAS, the Parties acknowledge that the tremendous growth in the
telecommunications traffic in South East Asia warrants the implementation of a
new high capacity fiber optic cable system with Cable Landing Points in
Thailand, Indonesia and Singapore (hereinafter referred to as "TIS") to support
such demand and to connect to existing and planned South East Asian cable
systems;
WHEREAS, the Parties acknowledge that the existing cables in South East
Asia would be fully utilized in the next few years;
WHEREAS, the Parties wish to acquire capacity at the highest quality on
an ownership basis;
WHEREAS, CAT, TELKOM and SINGTEL signed a Memorandum of Understanding
to plan the TIS effective from 13 May 2002 (hereinafter referred to as the
"MOU") to permit activities, as defined in the MOU; and
WHEREAS, the MOU shall continue to be in force until the signing, by
the Parties, of this Agreement, which is the TIS Construction and Maintenance
Agreement (hereinafter referred to as the "C&MA" or "Agreement"); and
WHEREAS, the Parties now desire to construct the TIS comprised of two
(2) fiber optic pairs; and
WHEREAS, the Parties now desire to define the terms and conditions upon
which the TIS will be provided, constructed, operated and maintained.
NOW, THEREFORE, the Parties hereto, in consideration of the mutual
covenants herein expressed, covenant and agree with each other as follows:
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1 DEFINITIONS AND INTERPRETATIONS
1.1 The following definitions and interpretations shall apply to certain
terms used in this Agreement:
(a) ASSOCIATE COMPANY: A company is the Associate of another if
either company owns directly no less than 20% of its equity.
(b) CABLE LANDING POINT: Cable Landing Point shall be the beach
joint or the mean low watermark of ordinary spring tides if
there is no beach joint.
(c) CAPACITY: Capacity shall be expressed in terms of two (2) half
MIUs and shall be classified as follows:-
ALLOCATED CAPACITY: Capacity allocated in the TIS to Specific
Parties and which comprises Assigned Capacity, Defined
Capacity and Reserved Capacity.
ASSIGNED CAPACITY: Capacity which is assigned to the Parties
in specific Paths of the TIS.
DEFINED CAPACITY: Capacity acquired by a Party for transfer on
an IRU basis to other Carriers pursuant to Subparagraph 14.10.
DESIGN CAPACITY: the maximum capacity that the TIS is designed
to provide which shall be no less than 160 Gbit/s per
fiber pair.
EQUIPPED CAPACITY: the amount of capacity physically provided
in the TIS.
INITIAL EQUIPPED CAPACITY: Initial Equipped Capacity of the
TIS shall be 30 Gbit/s.
IRU CAPACITY: Capacity acquired after execution of this
Agreement on an IRU basis.
RESERVED CAPACITY: Capacity which is acquired by a Party for
its intended future assignments pursuant to Subparagraph 14.7.
UNALLOCATED CAPACITY: the difference in capacity between the
Design Capacity and the Allocated Capacity.
UNASSIGNED CAPACITY: Capacity which comprises the Defined
Capacity and/or Reserved Capacity.
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(d) CARRIER: Any entity authorized or permitted under the laws of
its respective Country, or another Country in which it
operates, to acquire and use international transmission
facilities for the provision of international
telecommunications services and which is in possession of any
necessary operating license to enable it to do so.
(e) COUNTRY: The word Country as used in this Agreement shall mean
a country, territory or place, as appropriate.
(f) FINAL ACCEPTANCE: The issuance of a Certificate of Final
Acceptance pursuant to the terms and conditions set forth in
the Supply Contract(s).
(g) INITIAL PARTIES: Initial Parties are CAT, TELKOM and SINGTEL.
(h) IRU: Indefeasible Right of Use which does not convey ownership
and voting rights in the management of the TIS.
(i) IRU PURCHASERS: shall mean any Carrier that purchase IRU of
the TIS.
(j) LINK: The physical optical fibre pair(s) between the Network
Interfaces at the Terminal Stations (excluding Terminal
Stations) of one Terminal Party and another Terminal Party.
The Links of the TIS shall be as follows :-
(i) Thailand - Singapore Link;
(ii) Singapore - Indonesia Link.
(k) MINIMUM INVESTMENT UNIT: A unit designated as the minimum unit
of investment in the TIS, allowing the use of two (2) half
STM-l circuits on any Path within the TIS. The Minimum
Investment Unit is hereinafter termed as a "MIU".
(l) NETWORK INTERFACE: the nominal STM-1 digital/optical
input/output ports, and/or STM-4, STM-16 and STM-64 on the
digital/optical distribution frame (including the
digital/optical distribution frame itself) where the basic
system payload module connects/aggregates with other
transmission facilities or equipment.
(m) PATH: The connectivity in the TIS between any two Terminal
Stations, independent of the actual Link(s) used to connect
these Terminal Stations. The Paths of the TIS shall be as
follows:-
(i) Thailand-Singapore Path;
(ii) Singapore - Indonesia Path; and
(iii) Thailand - Indonesia Path.
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(n) NETWORK ACCEPTANCE: The issuance of Certificate of Network
Acceptance pursuant to the terms and conditions as set forth
in the Supply Contract(s).
(o) READY FOR NETWORK ACCEPTANCE DATE: The date on which the
entire Segment S of the TIS is provisionally accepted by the
Procurement Group (hereinafter referred to as the "PG") on
behalf of the Parties. The Ready for Network Acceptance Date
(hereinafter referred to as the "RFNA Date") shall be 27
November 2003, or such other date as may be agreed by the
Management Committee (hereinafter referred to as the "MC").
(p) READY FOR SERVICE DATE: The date on which commercial service
can be placed on the entire TIS. For the purposes of this
Agreement, the Ready for Service Date shall be on or before 5
December 2003, or such other date as may be agreed by the MC
established pursuant to Subparagraph. 3.1 hereof (hereinafter
referred to as the "RFS Date").
(q) SIE: Synchronous Digital Hierarchy/Interconnecting Equipment.
(r) SUPPLY CONTRACT: The contract(s) placed by the PG on behalf of
the Parties for the supply of Segment S of the TIS.
(s) TERMINAL PARTIES: The Terminal parties are CAT, TELKOM and
SINGTEL.
(t) TERMINAL STATION: The cable landing station at the Cable
Landing Points.
1.2 Schedules and Annexes
The Schedules and Annexes to this Agreement, and any written amendments
thereto or any Schedules or Annexes substituted therefore, shall form
part of this Agreement, and any Paragraph which contains a reference to
a Schedule or Annex shall be read as if the Schedule or Annex was set
out at length in the body of the Paragraph itself. In the event that
there is any conflict between the terms and conditions of this
Agreement and the Schedules and Annexes to this Agreement, the terms
and conditions of this Agreement shall prevail.
1.3 Interpretation
Where the sense requires, words denoting the singular only shall also
include the plural and vice versa. References to persons shall include
firms and companies and vice versa. Reference to the male shall include
the female.
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2. TIS CONFIGURATION, PLANNING AND DEVELOPMENT
2.1 The configuration of TIS shall be as shown in Annex 3.
2.2 The planning and development of the TIS shall be based on the use of
proven technology judged suitable for implementation of the TIS at the
RFS Date employing the appropriate transmission rate necessary to meet
the capacity requirements of the Parties, which shall be initial at 3 x
9.95328 Gbits per second (30 Gbits/s) or higher.
3. MANAGEMENT COMMITTEE
3.1 For the purpose of directing the progress of the engineering,
provision, installation, bringing into service and continued operation
of the TIS, the Parties shall form a Management Committee (hereinafter
referred to as "MC), consisting of a Chairman and one representative
from each of the Parties to this Agreement. Except as otherwise stated
in this Agreement, which exception shall include decisions on
procurement which shall be made by the Procurement Group (hereinafter
referred to as "PG") in accordance with Paragraph 7, the MC shall make
all major decisions necessary on behalf of the Parties to effectuate
the purposes of this Agreement, including bat not limited to, the
placement of the TIS and its associated Terminal Stations, or any
portion thereof into service prior to or on or after the RFS Date.
3.2 Two or more Parties may designate the same Party to serve as their
representative at specific meetings of the MC and/or its Subcommittees
established pursuant to Subparagraph 3.7 of this Agreement.
3.3 Each of the Parties shall, on a rotational basis, provide the Chairman
of the MC. The MC will meet on the call of a Chairman or whenever
requested by one or more Parties together representing at least thirty
three point three three per cent (33.33%) of the total voting interests
specified in Schedule B. The Chairman shall give at least thirty (30)
days advance notice of each meeting to each of the Parties hereto,
together with a copy of the draft agenda. In cases of emergency, such
notice period may be reduced where at least sixty six point six seven
percent (66.67%) of the total voting interests an in agreement.
Documents for the meeting should be made available to members at least
fourteen (14) days before the meeting, but the MC may agree to discuss
papers distributed on less than fourteen (14) days' notice.
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3.4 All decisions made by the MC shall be subjected; in the first place, to
consultation among the Parties, which shall make every reasonable
effort to reach agreement with respect to matters to be decided.
However, in the event an agreement cannot be reached, the decision will
be carried on the basis of a vote, representing seventy five percent
(75%) of the total voting interests specified in Schedule B. Votes of
the members of the MC shall be weighted in proportion to the relative
voting interests as specified in Schedule B of the Parties they
represent. A member of me MC representing more than one Party shall
separately cast the votes to which each Party he represents is
entitled.
3.5 Any Party not represented at a MC meeting, but entitled to vote, may
vote on any matter on the agenda of such meeting by either appointing a
proxy in writing, or giving notice of such vote to the Chairman prior
to the submission of such matters for vote at such meetings.
3.6 No decisions of the MC, its subcommittees or any other groups
established by the MC shall override any provisions of this Agreement
or in any way diminish the rights or prejudice the interests granted to
any Party under this Agreement.
3.7 The following subcommittees shall be formed, comprised of
representatives of each Party, to aid the MC in the performance of its
duties. The said subcommittees, under the direction of the MC, shall be
responsible for their respective areas of interest listed in Annex 1 of
this Agreement and any other areas of interest designated by the MC:
(i) Technical and Operational Subcommittee (hereinafter referred
to as "T&OSC");
(ii) PG;
(iii) Financial and Administration Subcommittee (hereinafter
referred to as "F&ASC").
3.8 The Parties shall appoint among themselves the Chairman or Co-Chairmen
of the T&OSC and F&ASC, each of which subcommittees shall meet at least
annually after the effective date of this Agreement and more frequently
if necessary, until two (2) years following the RFS Date and thereafter
as may be appropriate. Meetings of a subcommittee may be called to
consider specific questions at the discretion of its Chairman, or
Co-Chairmen, or whenever requested by one or more Parties representing
at least thirty three point three three percent (33.33%) of the total
voting interests specified in Schedule B.
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3.9 The respective Chairman or Co-Chairmen of each subcommittee, or a
designated representative of each subcommittee, shall attend the MC
meetings and meetings of each other subcommittee in an advisory
capacity as necessary. On or about two (2) years after the RFS Date,
the MC shall determine whether any of its subcommittees should remain
in existence. If the MC determines that one or more of its
subcommittees shall not remain in existence, the responsibilities
assigned to a subcommittee whose existence has been terminated under
this Subparagraph 3.9 shall revert to the MC unless otherwise provided
for in this Agreement.
3.10 The Network Administrator (hereinafter referred to as "NA") shall be
appointed by the MC.
3.11 The Terms of Reference and appointment arrangement for the NA are as
set forth in Annex 2 of this Agreement.
3.12 The Terms of Reference of all the subcommittees, the NA established
pursuant to this Paragraph 3 shall be amended by the MC as and when it
is necessary.
4. TIS SEGMENTS
4.1 In accordance with the arrangements contained in this Agreement, the
TIS shall be engineered, provided, constructed, maintained and operated
between a terminal in Thailand, a terminal in Indonesia and a terminal
in the Singapore, which for purposes of this Agreement, shall be
regarded as consisting of the following segments:
Segment S: The whole of the submarine cable provided between
and among, including, the TIS Network Interfaces at
the Terminal Stations at Songkhla, Thailand; Changi,
Singapore and Batam, Indonesia.
Segment T1: A Terminal Station at Songkhla, Thailand
Segment T2: X Xxxxxxxx Xxxxxxx xx Xxxxxx, Xxxxxxxxx
Segment T3: A Terminal Station at Batam, Indonesia
4.2 Segments T1, T2 and T3 shall each consists of:
(i) an appropriate share of land, civil work and buildings at the
specified locations for the cable landing and for the cable
route including cable rights-of-way and ducts between a
Terminal Station and its respective Cable Landing Point and an
appropriate share of common services and
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equipment at each of those locations together with equipment
in each of those Terminal Stations which is solely associated
with the TIS, but not a part of Segment S; and
(ii) multiplex and/or digital cross connect equipment, SIE, Add
Drop Multiplexers (hereinafter referred to as "ADM") or an
appropriate share thereof in each of the Terminal Stations as
required to operate and interface between the TIS Network
Interface and the nominal 155 Mbit/s operating point,
associated solely and directly with assigned capacity entering
or leaving the TIS.
4.3 Segment S shall be regarded as consisting of the following Subsegments:
SUBSEGMENT S1:
The whole of the submarine cable containing two (2) optical fiber pairs
provided between and including the TIS Network Interface at the
Terminal Station at Songkhla and the TIS Network Interface at the
Terminal Station at Changi.
SUBSEGMENT S2:
The whole of the submarine cable containing two (2) optical fiber pairs
provided between and including the TIS Network Interface at the
Terminal Station at Changi and the TIS Network Interface at the
Terminal Station at Batam.
4.4 Segment S shall include:
(i) all transmission, power feeding and test equipment directly
associated with submersible plant;
(ii) the power equipment provided wholly for use with the equipment
listed in (i) above;
(iii) the transmission cable equipped with appropriate repeaters and
joint housings between the Terminal Stations;
(iv) the power feed earth system or an appropriate share thereof,
associated with terminal power feeding equipments; and
(v) multiplexing and/or digital cross connect equipment or an
appropriate share thereof, down to the 155 Mbit/s level in
each of the Terminal Stations as required and approved by the
MC, associated solely and directly with assigned capacity
transiting between any two interconnecting Links in the TIS.
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5 PROVISION AND CONSTRUCTION OF SEGMENTS T1, T2 AND T3
5.1 Segment T1 of the TIS shall consist of an appropriate share of the
existing Terminal Station at Songkhla and shall be provided by CAT.
5.2 Segment T2 of the TIS shall consist of an appropriate share of the
existing Terminal Station at Changi and shall be provided by SINGTEL.
5.3 Segment T3 of the TIS shall consist of an appropriate share of the
existing Terminal Station at Batam and shall be provided by TELKOM.
5.4 Each Terminal Party shall bear its own Segment T capital costs in the
initial construction of the TIS.
6 OWNERSHIP OF SEGMENTS
6.1 Segment S of the TIS shall be owned by the Parties in common and
undivided shares, in the proportions set forth in Schedule B. Ownership
of Segment S shall vest in the Parties immediately upon ownership
vesting in the PG in accordance with the Supply Contract(s).
6.2 Segment T1 of the TIS shall be owned by CAT
6.3 Segment T2 of the TIS shall be owned by SINGTEL
6.4 Segment T3 of the TIS shall be owned by TELKOM
6.5 Each segment or sub-segment shall be regarded as including its related
spare and stand by units and components, including but not limited to,
submersible repeaters, cable length and terminal equipment where
appropriate.
7 SUPPLY OF SEGMENT S
7.1 The supply of Segment S shall be through the Supply Contract to be
placed by the PG with supplier(s) subject to approval by the MC.
7.2 Each of the Parties shall be entitled, on request and its own expense,
to receive from the PG a copy of the Supply Contract subject to the
acceptance by each such Party of any reasonable conditions of
confidentially imposed by the Supply Contract.
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7.3 The PG shall ensure that the Supply Contract specify that Segment S of
the TIS provided pursuant to the Supply Contract shall be ready for
Network Acceptance on or before 27 November 2003. However, the Parties
recognize and agree that the PG does not warrant or guarantee that
Segment S of the TIS shall be ready for Network Acceptance on the date
specified in the Supply Contract
7.4 The PG shall ensure that the Supply Contract shall afford them or their
designated representatives reasonable rights of access to examine, test
and inspect the TIS submarine cable equipment material, supplies and
installation activities.
7.5 In the event that Segment S fails to meet the specifications referenced
in the Supply Contract for its provision, fails to provide the
specified capacity, or is not engineered, provided, installed and ready
in sufficient time to meet the RFNA Date specified in the Supply
Contract or if the supplier(s) are otherwise in material breach of the
Supply Contract, the PG, as an agent of the Parties to this Agreement
may pursuant to this Paragraph 7 and in accordance with the Supply
Contract take such actions as may be necessary to exercise the rights
and remedies available under the terms and conditions of the Supply
Contract Such actions by the PG shall be subject to any direction
deemed necessary by the MC.
7.6 The members of the PG shall not be liable to any other Party for any
loss or damage sustained by reason of a supplier's failure to perform
in accordance with the terms and conditions of its Supply Contract or
as a result of the TIS not being ready for network acceptance on or
before the RFNA Date specified in the Supply Contract or if the TIS
does not perform in accordance with the technical specifications and
other requirements of the Supply Contract or the TIS is not integrated
or placed into operation. The Parties recognize that the PG does not
guarantee or warrant (i) the performance of the Supply Contract by the
supplier(s), (ii) the performance or reliability of Segment S of the
TIS, or (iii) that the TIS will be integrated or placed into operation.
And the Parties hereby agree that nothing in this Agreement shall be
constructed as such a warranty or guarantee.
8 DEFINITION OF SEGMENT S CAPITAL COSTS
8.1 The Segment S capital costs (hereinafter referred to as Segment S
Capital Costs), as used herein, refer to costs incurred in connection
with engineering, providing, constructing, laying and installation of
Segment S of the TIS; or causing it to be engineered, provided and
constructed, and shall include:
(i) financial charges attributable to other Parties' shares of
such costs incurred under the MOU in respect of the TIS;
(ii) those costs payable to the supplier(s) under the Supply
Contract;
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(iii) those costs directly incurred by the Terminal Parties which
shall be fair and reasonable in amount and not included in the
Supply Contract, and which have been directly and reasonably
incurred for the purpose of, or to be properly chargeable in
respect of, such engineering, provision, construction,
installation and laying of Segment S, including but not
limited to the costs of engineering, design, materials,
manufacturing, procurement and inspection, installation,
removing (with appropriate reduction for salvage) cable ship
and other ship costs, route survey, burying, testing
associated with laying or installation, customs duties taxes
(except income tax imposed on the net income of a Party),
financial charges attributable to other Parties' shares of
costs incurred, supervision, billing activities, overheads and
insurance or a reasonable allowance in lieu of insurance if
such Party elects to carry a risk itself being a risk which is
similar to one against which a supplier has insured or against
which insurance is usual or recognized or would have been
reasonable.
(iv) those costs and expenses incurred by the NA Up to the RFS Date
in fulfilling its responsibilities as set forth in Annex 2;
(v) The Segment S Capital Costs shall include PG meeting costs but
exclude costs incurred by the Parties hereto in holding of MC
meetings and meetings of its subcommittees or groups
established pursuant to Subparagraph 3.7.
8.2 The Segment S Capital Costs shall also include the costs of any
additional work and multiplex and/or digital cross connect equipment,
SIE, ADM or an appropriate share thereof, down to the 155 Mbit/s level,
as required and approved by the MC, associated solely and directly with
assigned capacity transiting between any two interconnecting Links in
the TIS, which may be incorporated in the Segment S subsequent to the
RFS Date.
9. DEFINITION OF OPERATION AND MAINTENANCE COSTS
9.1 The costs of operation and maintaining Segment S of the TIS up to beach
manhole (hereinafter referred to as the "Segment S O&M Costs"), shall
be shared by the Parties in the relevant proportions specified in
Schedule C2. The cost for operation and maintenance of land cable from
beach manhole to terminal station shall be part of the Segment T O&M
costs.
9.2 The costs associated with Segment S O&M Costs are the costs reasonably
incurred in the operation and maintenance of Segment S, including, but
not limited to:
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(i) the cost of attendance, testing, adjustments, storage of plant
and equipment, repairs (including repairs at sea) and
replacements, cable ships (including an appropriate share of
standby costs), cable deports, reburial and replacement of
plant, tools and test equipment, customs duties, taxes,
(except income tax imposed upon the net income of & Party)
paid in respect of such facilities, billing activities,
financial charges attributable to other Carriers' shares of
costs incurred by a maintenance authority (hereinafter
referred to as "Maintenance Authority" which have the same
meaning ascribed thereto under Subparagraph 12.7 herein),
supervision, overheads and costs and expenses reasonably
incurred on account of claims made by or against other persons
in respect of such facilities or any part thereof and damages
or compensation payable by the Party concerned on account of
such claims. Costs, expenses damages, or compensation payable
to the Parties on account of claims made against other
persons, shall be subjected to MC approval and shall be shared
by the Parties in the proportions specified in Schedule C.
(ii) those fees payable to the NA, after the RFS Date, in
fulfilling its responsibilities as set forth in Annex 2;
9.3 The costs referred to in Subparagraph 9.2 above shall exclude costs
incurred by the Parties hereto in the hosting of the meetings of the MC
and the subcommittees or groups pursuant to Subparagraph 3.7 or in the
attendance by the Parties' representative of such meetings after the
RFS Date unless approved by the MC.
10 ALLOCATION AND BILLING OF SEGMENT S CAPITAL AND OPERATION AND
MAINTENANCE COSTS
10.1 The Segment S Capital Costs as defined in Paragraphs S shall be borne
by the Initial Parties, in the proportions as set forth in Schedule Cl.
The Segment S Capital Costs for the Initial Parties shall be billed by
Supplier in accordance with the Supply Contract. The NA shall xxxx
Additional Parties according to their purchase price and reimburse the
Initial Parties according to Schedule C1.
10.2 The Segment S O&M Costs as defined in Paragraph 9 shall be borne by the
Parties, in the proportions as set forth in Schedule C2.
10.3 Unless the MC authorizes changes to the procedure for the rendering of
bills associated with me Segment S Capital Costs or Segment S O&M
Costs, the NA or Terminal Parties shall promptly render bills
respectively, in accordance with this Paragraph 10 and the billing and
payment procedures established by the F&ASC and approved by the MC, to
each of the Parties for such Party's pro rata shares of these costs in
accordance with Schedule Cl and C2 respectively. Such bills shall be
rendered by NA or Terminal Parties not more frequently than
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quarterly and shall contain a reasonable amount of detail to
substantiate them. On the basis of such bills, each Party shall pay NA
or the Terminal Parties such amounts as may be owed by the end of the
calendar month following the calendar month in which the xxxx was
rendered.
10.4 In the case of bills containing costs billed on a preliminary billing
basis, appropriate adjustments will be made in subsequent bills
promptly after the actual costs involved are determined. As soon as
practicable, NA and the Terminal Parties shall make such adjustments
and render such bills or arrange for such credits as appropriate due to
changes in the cost actually incurred.
10.5 For purposes of this Agreement, financial charges shall be computed as
applicable on a daily basis from the date the cost is incurred until
the date payment is due, at a rate equal to the lowest publicly
announced prime rate or minimum commercial lending rate, however
described, for ninety (90) days loans in the currencies of the Parties
or the currency of billing, as applicable, charged by established
commercial banks in the countries concerned on the fifteenth day of the
month in which the costs were incurred by the invoicing Parties. If
such a day is not a business day, the rate prevailing on the next
business day shall be used. The source of the rate of such financial
charges shall be as shown at Annex 4. The application of financial
charges relating to costs incurred for the Segment S Capital Costs and
Segment S O&M Costs shall be limited to a maximum of one hundred twenty
(120) days, unless otherwise approved by the MC.
10.6 Amounts billed and not paid when due shall accrue extended payment
charges from the day following the date on which payment was due until
paid. If the due date is not a business day, the due date shall be
postponed to the next business day. For the purpose of this Agreement,
extended payment charges shall be computed at three hundred percent
(300%) of the rate described in Subparagraph 10.5 on the day following
the date payment of the xxxx was due. In the event that applicable law
does not allow the imposition of extended payment charges at the rate
established in accordance with this Subparagraph 10.6, extended payment
charges shall be at the highest rate permitted by applicable law, which
in no event shall be higher than the rate computed in accordance with
this Subparagraph 10.6. For purposes of this Agreement, "paid" shall
mean that the funds are immediately available for use by the recipient.
10.7 Credits for refund of financial charges and bills for extended payment
charges shall not be rendered if the amount of charges involved is less
than the equivalent of one hundred ($100) US dollars or its equivalent
in the billing currency.
10.8 A xxxx shall be deemed to have been accepted by the Party to whom it is
rendered if that Party does not present a written objection on or
before the date when payment is due. If such objection is made, the
Parties concerned shall make every reasonable effort to settle promptly
the dispute concerning the xxxx in question. If the objection is
sustained and the billed Party has paid the disputed xxxx, the
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agreed upon overpayment shall be promptly refunded to the objecting
Party by the invoicing Party together with any financial charges
calculated thereon at a rate determined in accordance with Subparagraph
10.5 of this Agreement from the date of payment of the xxxx to the date
on which the refund is transmitted to the objecting Party. If the
objection is not sustained and the billed Party has not paid the
disputed xxxx, the said Party will pay such xxxx promptly together with
any extended payment charges calculated thereon at a rate determined
in accordance with Subparagraph 10.6 of this Agreement from the day
following the day on which payment was due until paid. Nothing in this
Subparagraph 10.8 shall relieve a Party from paying those parts of a
xxxx that are not in dispute.
11. CURRENCY OF PAYMENT
All bills rendered to the Party shall be in the currency of the United
States or in the currency of the billing Party which is specified in
Annex 4 or the currency in which the cost was incurred in the case of
Segment S O&M Costs. Such bills shall be paid in the currency in which
the bills are rendered. In conjunction with the NA and Terminal
Parties, the F&ASC shall develop procedures to deal with the
differences between the exchange rates.
12 DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE OF SEGMENTS
12.1 CAT shall be solely responsible for the operation and maintenance of
Segment T1 and that portion of Segment S between the TIS Network
Interface at the Terminal Station at Songkhla and its respective Cable
Landing Point. CAT shall use all reasonable efforts to operate and
maintain or cause to be operated and maintained Segment T1 and the said
portion of Segment S, economically and in efficient working order.
12.2 SINGTEL shall be solely responsible for the operation and maintenance
of Segment T2 and those portions of Segment S between the TIS Network
Interfaces at the Terminal Station at Changi and its respective Cable
Landing Points. SINGTEL shall use all reasonable efforts to operate and
maintain or cause to be operated and maintained Segment T2 and those
said portions of Segment S, economically and in efficient working
order.
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12.3 TELKOM shall be solely responsible for the operation and maintenance of
Segment T3 and those portions of Segment S between the TIS Network
Interfaces at the Terminal Station at Batam and its respective Cable
Landing Points. TELKOM shall use all reasonable efforts to operate and
maintain or cause to be operated and maintained Segment T3 and those
said portions of Segment S, economically and in efficient working
order.
12.4 The Terminal Parties (for the purpose of this Agreement, collectively
called the "Maintenance Authorities" and individually called the
"Maintenance Authority" or "MA") shall be responsible for the overall
operation and maintenance of those portions of Segment S connecting the
respective Terminal Parties' Cable Landing Points, economically and
efficient working order and with an objective of achieving effective
and timely repairs when necessary. The Segment S operation and
maintenance procedures shall be established by the MA following
consultation with the T&OSC, as appropriate. The MA shall perform their
responsibilities in a manner consistent with those maintenance
agreements applicable to the TIS.
12.5 Such responsibilities shall be apportioned between and among the
Terminal Parties as they may mutually agree. The responsibilities for
the Segment S operation and maintenance shall be reviewed, and
recommendations shall be made to the MA as appropriate, by the T&OSC.
The MA shall use all reasonable efforts to operate and maintain or
cause to be operated and maintained economically the Segment S of the
TIS in efficient working order.
12.6 The MA shall have the right to deactivate Segment S, or any part
thereof, in order to perform their duties. Prior to such deactivation,
reasonable notice shall be given to, and coordination shall be made
with the other Carriers. To the extend possible, sixty (60) days prior
to initiating action, the MA involved shall advise the other Carriers
in writing of the timing, scope, and costs of significant planned
maintenance operations; of significant changes to existing operations
and maintenance methods; and of contractual arrangements for cable
ships or other maintenance facilities or devices that will have a
significant impact on operation or maintenance costs. Should one or
more Parties representing at least seventy five percent (75%) of the
total voting interests in the TIS specified in Schedule B wish to
review such operation or change prior to its occurrence, such Party or
Parties shall notify the appropriate MA and the T&OSC Chairman or Co-
Chairmen in writing thirty (30) days of such advice. Upon such
notification, the T&OSC shall initiate action to convene an ad hoc
meeting for such review.
12.7 Each Party that has designed or procured equipment used in the TIS
shall give necessary information relating to the Segment S operation
and maintenance of the equipment to the MA responsible for the Segment
S operation and maintenance of such equipment. Each MA with
responsibility for the maintenance of any segment or portion of any
segment of the TIS shall have prompt access necessary
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to the performance of its duties to all system maintenance information
appropriate to those parts of the TIS not covered by its authority.
12.8 The MA, with respect to the TIS, shall be authorized to pursue claims
in its own name, on behalf of the Parties, in the event of any damage
or loss to the TIS or any part thereto and may file appropriate lawsuit
or other proceedings on behalf of the Parties. Subject to obtaining the
prior concurrence of the MC, a MA may settle or compromise any claims
and execute releases and settlement agreements on behalf of the Parties
as necessary to effect a settlement or compromise. The MC shall be
informed of all such activities, as appropriate.
12.9 None of the Party shall be liable to any other Party or take on itself
to be responsible to any Carrier for any loss or damage sustained by
reason of any failure in, or breakdown of, the facilities constituting
the TIS or any interruption of service, whatsoever shall be the cause
of such failure, breakdown, or interruption, and however long it shall
last, but, in the event of a failure or breakdown of any such
facilities, if the MA responsible for O&M of such facilities involved
as specified in this Paragraph 12 fails to restore those facilities to
efficient working order and operation within a reasonable time after
having been called upon to do so by any other Party to whom capacity is
assigned by this Agreement, the MC may, to the extent that it is
practical to do so, place or cause to be placed such facilities in
efficient working order and operation and charge the Carriers their
proportionate shares of the costs reasonably incurred in doing so.
12.10 Each Party to this Agreement, at its own expense, shall have the right
to inspect from time to time the Segment S operation and maintenance of
any portion of the TIS and to obtain copies of the maintenance records.
For this purpose, each MA responsible for maintaining any segment or
portion of any segment of the TIS, as specified in this Paragraph 12
shall retain significant records, including recorder charts, for a
period of not less then five (5) years from the date of the record. If
these records are destroyed at the end of this period, a summary of
important items should be retained for the life of the TIS. Such right
of inspection pursuant to this Subparagraph 12.10 shall be subject to
reasonable conditions of confidentiality.
13 KEEPING AND INSPECTION OF BOOKS FOR SEGMENT S
13.1 For those portions of Segment S, if any, specified in the Supply
Contract as costs incurred items, the PG shall ensure that the Supply
Contract require the supplier(s) to keep and maintain such books,
records, vouchers and accounts of all such costs with, respect to the
engineering, provision and installation of those items for a period of
five (5) years from the date of Network Acceptance of Segment S, as
specified in the Supply Contract(s).
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13.2 For those portions of Segment S specified in the Supply Contract as
fixed cost items, the PG shall ensure that the Supply Contract require
the supplier(s) to keep and maintain records with respect to their
respective billing of those items for a period of five (5) years from
the RFNA Date of Segment S, as specified in the Supply Contract.
13.3 The PG shall ensure that the Supply Contract require the supplier(s) to
obtain from their contractors and subcontractor(s) such supporting
records, for other than the cost of fixed cost items, as may be
reasonably required by Subparagraph 13.1 and to keep and maintain such
records for a period of five (5) years from the RFNA Date of Segment S,
as specified in the Supply Contract.
13.4 The PG shall ensure that the Supply Contract shall afford the Parties
to this Agreement the right to review the books, records, vouchers, and
accounts required to be kept, maintained, and obtained pursuant to
Subparagraphs 13.1, 13.2 and 13.3.
13.5 With respect to additions to Segment S, comparable records to those
specified in Subparagraphs 13.1, 13.2 and 13.3, as appropriate, shall
be maintained by the Party providing such additions for a period of
five (5) years from the installation date of such equipment.
13.6 The Terminal Parties shall each keep and maintain such books, records,
vouchers, and accounts of all costs that are incurred in the
engineering, provision and installation of Segment S and not included
in the Supply Contract, as defined in Paragraph 10, which they incur
directly, for a period of five (5) years from the RFS Date or the date
the work is completed, whichever is later.
13.7 With respect to the Segment S O&M Costs, such books, records, vouchers,
and accounts of costs, as are relevant, shall be kept and maintained by
the Terminal Parties for a period of five (5) years from the date on
which the corresponding bills to the Carriers are rendered.
13.8 Any Party, including the NA, keeping and maintaining relevant books,
records, vouchers, and accounts of costs pursuant to Subparagraphs
13.5, 13.6 and 13.7 shall afford the other Parties the right to review
or audit the said books, records, vouchers, and accounts of costs. In
affording the right to review or audit, the entire costs reasonably
incurred in complying with the review or audit. In the case of an audit
initiated by the MC and exercised by the F&ASC, the audited Party or
Parties shall be permitted to recover the entire costs of the review or
audit from the Carriers in the proportions specified in the appropriate
Schedule.
13.9 Any rights of review and audit pursuant to this Paragraph 13 shall only
be exercisable through the F&ASC in accordance with the F&ASC's audit
procedures.
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14 ASSIGNMENT AND USE OF CAPACITY
14.1 The Capacity of the TIS can only be used by a Carrier.
14.2 The Parties shall obtain Allocated Capacity in the form of MIUs on an
ownership basis as shown in Schedule B.
14.3 Procedures for Parties activation of their Allocated Capacity will be
developed by the T&OSC and the NA for MC approval.
14.4 A Party is allowed to use its Allocated Capacity for the provision of
international telecommunications services with/by itself and its
Associate companies provided that the users of the capacity are also
Carriers and that such Associate companies are not operating in the
other Party's landing countries except in the Party's landing country.
14.5 For the purpose of this Agreement, transfer of Allocated Capacity
(hereinafter referred to as "Transfer") is the making available of all
the right of use of the capacity to an Associate company without
transferring the Party's other obligations and rights.
14.6 Subjected to MC approval, transfer of a Party's Allocated Capacity to
its Associate is allowed provided that the capacity transferred is in
multiples of the MIU and that the recipient of the transferred capacity
is a Carrier and provided that such recipient/s does/do not operate in
the other parties landing countries except in the Party's landing
country. The subsequent transfer by the recipient to another party is
not allowed. The transfer back of the said allocated capacity to the
transferor is allowed only once.
14.7 The Assigned and Unassigned Capacity which comprised of the Parties
shall be in accordance with Schedule E. Such Unassigned Capacity shall
comprise Reserved Capacity for intended future assignments in
accordance with Subparagraph 14.9, and/or Defined Capacity for sale on
an IRU basis in accordance with Subparagraph l4.11.
14.8 The Capacity in the TIS shall be jointly assigned in a Path to two (2)
Carriers or wholly assigned in a Path to one (1) Carrier and shall be
expressed in terms of half interest in a MIU:
(i) Jointly-assigned Capacity in a Path Assignment shall be
considered as consisting of two half-interests in a MIU, with
each half-interest assigned to one of the two Carriers
involved. Such MIUs are assigned to the indicated Party for
provision of international telecommunications services between
such Carriers.
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(ii) Wholly-assigned Capacity in a Path Assignment shall be
considered as consisting of two half-interests in a MIU
assigned to one Party. Such MIUs can only be assigned to the
indicated Party for:
(a) connection from TIS Cable Landing Point by a Party
licensed in that country/territory to an external
cable system, The traffic termination must be in a
non-TIS Cable Landing Point country/territory in
which the Party is also licensed to provide
international telecommunication services (hereinafter
referred to as 'Transit Out"); or
(b) connection from another cable system to a TIS Cable
Landing Point for transit through TIS for exit to
another cable system via a TIS Cable Landing Point.
The traffic termination at both ends must be in
non-TIS Cable Landing Point countries/territories
(hereinafter referred to as "Transit Through").
14.9 Any Party having Reserved Capacity may, at times approved by the MC,
have such capacity, or a portion thereof redesignated as Assigned
Capacity (with an appropriate designation of a specific Path) as is
necessary to establish jointly- assigned Capacity or wholly-assigned
Capacity pursuant to Subparagraph 14.8. Such capacity shall be assigned
to a Party designating its Reserved Capacity as set forth above, and
shall not be reassigned to another Carrier. Such re-designation of
Reserved Capacity to Assigned Capacity shall also be subjected to the
following:
(i) The half-interests in the jointly-assigned MIUs required by a
Party in any Path of the TIS shall be deducted from the
Party's Reserved Capacity, wherever available.
(ii) The two half-interests in the wholly-assigned MIUs required by
a Party in any Path of the TIS shall be deducted from the
Party's Reserved Capacity, wherever available.
14.10 The procedures for the transfer of a Party's Reserved Capacity and
Defined Capacity shall be as follows:
(i) A Party which has Reserved Capacity may, once at the end of
every one (1) year after the RFS Date coincide with the MC
meetings, convert such capacity to Defined Capacity.
(ii) A Party which has Defined Capacity may convert such capacity
to Reserved Capacity at any time as required.
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(iii) Notwithstanding Subparagraph 14.10 (i), any Party may be
permitted to transfer the MIU between their Reserved Capacity
and Defined Capacity on other, occasions subject to the
approval of the MC in consideration of circumstances,
including but not limited to the following:
(a) The introduction of new submarine cable systems
interconnecting to the TIS; and
(b) The introduction of other international
telecommunications Carrier to the country of a
Terminal Party.
(iv) A Party which has Assigned Capacity may convert such capacity
to Reserved Capacity not more than once per year.
14.11 Any capacity acquired after the RFS Date shall be on an IRU basis at a
price to be determined by the MC. Such acquisition of capacity on an
IRU basis shall be in accordance with the following:
(i) The MIU requirements of any Carriers from the same country as
a Terminal Party may be deducted from the Defined Capacity of
the Landing Party(ies) of that country, which shall have a
first priority in the said deduction. Such deduction shall be
communicated to the Network Administrator at the time of such
capacity acquisition.
(ii) Except as provided in Subparagraph 14.11(i), any sales of
capacity on an IRU basis prior to the disposal of all of the
Parties' Defined Capacity shall be from such Defined
Capacity. Funds from such sales of IRU capacity shall be
reimbursed to the Parties concerned based on the Defined
Capacity percentages specified in Schedule E. Thereafter the
MIU of such IRU sales shall be deducted proportionately from
each Party's Defined Capacity and Schedule E shall be amended,
as appropriate, to reflect the new levels of Defined Capacity
and share of funds from subsequent sales of capacity on an IRU
basis.
(iii) After all of the Parties' Defined Capacity has been disposed
of, subsequent sales of capacity on an IRU basis shall be from
the Unallocated Capacity. Funds from such sales of IRU
capacity shall be reimbursed to the Parties in the proportions
specified in Schedule B.
(iv) Carriers requesting capacity on an IRU basis pursuant to
Subparagraph 14.11 shall enter into an IRU Agreement, which
shall be subjected to the approval of the MC.
(v) The Network Administrator, pursuant to the Terms of Reference
as set forth in Annex 2 of this Agreement, shall be authorized
to execute such IRU agreement(s) on behalf of the Parties to
this Agreement.
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14.12 No Party may make available any of its half-interests in any of the
Path assignments, on any basis whatsoever, to another carrier, except
with the approval of the MC.
14.13 No Party may reassign any of its Path assignments, except with the
approval of the MC.
14.14 The Unallocated Capacity of TIS shall be owned by the Parties in common
and undivided shares in accordance with Schedule B.
14.15 After the RFS Date, the MC may authorize to redistribute part or whole
of the Unallocated Capacity to the Parties on a pro rata basis, in
MIUs, in accordance with Schedule B.
14.16 The MC may authorize use of the Unallocated Capacity for restoration of
telecommunications services. The terms and conditions of such use shall
be determined by the MC based, in part, on terms to be agreed to by the
relevant Terminal Parties of the TIS, in recognition of the technical
and operational impact on the Terminal Station operations.
14.17 The MC may authorize the allocation and exchange of a portion of the
Unallocated Capacity with other cable systems on such basis as is
deemed mutually beneficial to the Parties. The terms and conditions of
such allocation or exchange of capacity shall be agreed by the MC.
14.18 The communications capability of any capacity assigned in Schedule E
may be optimized by the Carriers to whom such capacity is assigned by
the use of equipment which will more efficiently use such capacity
provided that the use of such equipment does not cause an interruption
of or interference, impairment or degradation to the use of any other
capacity in the TIS or prevent the use of similar equipment by other
Carriers. Such equipment, if used shall not constitute a part of the
TIS.
14.19 Schedules B, C, D, E, and F shall be modified by the NA as appropriate
to reflect any revised assignments of capacity and/or IRU sales
pursuant to this Paragraph 14.
14.20 The Parties shall be authorized to allow occasional use of the
Unallocated Capacity, if available, on a commercial basis (hereinafter
referred to as "Occasional Commercial Use" for the provisioning
temporary or occasional telecommunications services, including but not
limited to administration leases and ad-hoc restoration services, to
any Carrier(s) or international telecommunications entity(ies), on the
terms and conditions to be determined by MC. The net receipts from such
Occasional Commercial Use shall be reimbursed to the Parties which
shall be in proportion to the ownership capacity of the Parties.
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14.21 Notwithstanding Subparagraph 14.20, any Party having Unassigned
Capacity may utilize such capacity for its own interest in the
temporary or occasional telecommunications services in accordance with
the procedures to be established by T&OSC and to be approved by the MC.
15 CAPACITY ROUTING
At times to be determined by the MC, including but not limited to those
specified in Subparagraphs 16.2, 16.3 and 16.4 of this Agreement, the
capacity routing of all Carriers shall be reviewed and established in
such a way, as it necessary to allocate the capacity in all Links of
the TIS to achieve the most efficient utilization of the entire TIS.
Such routing shall be as determined by the NA pursuant of the Terms of
Reference as set forth in Annex 2 of this Agreement, and shall be based
on principles of capacity routing which shall be approved by the MC.
16 INCREASE OR DECREASE OF DESIGN CAPACITY
16.1 If, subsequent to the RFS Date, the Design Capacity of the TIS or any
of its Link(s) thereof is increased or decreased pursuant to the
Agreement of the Parties or otherwise, and such increase or decrease of
the Design Capacity affects neither the routing of circuits assigned in
the TIS nor the Allocated Capacity of the TIS or any of its Link(s),
the additional or reduced Design Capacity will be added to or
subtracted from the Unallocated Capacity, as appropriate, with no
change to the Schedules of this Agreement.
16.2 In the event that the capacity which the TIS or any of its Link(s)
thereof is capable of providing is reduced below the capacity assigned
and/or required for use in such Links as a result of physical
deterioration or for other reasons beyond the control of the Parties,
the NA may reroute such circuits as are effected by the reduction of
capacity in such a way as to ensure efficient utilization of the TIS.
Should the other Links of the TIS be capable of supporting the
rerouting of such assigned circuits, the additional or reduced Design
Capacity will be added to or subtracted from the Unallocated Capacity
as appropriate with no change to the Schedules of this Agreement.
16.3 In the event that the capacity which the TIS or any of its Link(s)
thereof is capable of providing is lower than the capacity needed to
support the routing of circuits assigned in the TIS, the path
assignments of the Carriers in Schedule G may be reduced or changed as
necessary and agreed by the Carriers affected and financial adjustments
shall be made among the Carriers, as necessary on the terms and
conditions to be agreed by the MC. Schedules B, C, D, E and F shall be
modified,
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as appropriate, to reflect the revised Path Assignments associated with
such increase or decrease of the Design Capacity.
16.4 The NA shall thereafter administer subsequent IRU sales in the TIS and
routing of circuits assigned in the TIS in respect of such increase or
decrease of Design Capacity.
17 EXPANSION OF EQUIPPED CAPACITY
17.1 Any upgrade of Equipped Capacity of TIS, including any costs, financial
adjustments and allocation of capacity associated with such upgrade,
shall be approved by a vote of members of the MC representing at least
seventy five percent (75%) of the total voting interests as specified
in Schedule B.
17.2 All Parties shall have the right to a pro-rata store of the upgrade
capacity in accordance with revised Schedule C2. No Party shall be
forced to participate in such an upgrade.
17.3 In the event of the first expansion of Equipped Capacity, the initial
Unallocated Capacity shall be distributed on a pro-rata basis, in MIUs,
in accordance with the percentages in Schedule C2 before such upgrade.
17.4 Schedules C2 and D shall be appropriately modified to reflect the
revisions associated with such expansion of Equipped Capacity. Schedule
B shall remain unchanged.
18 USE OF TERMINAL STATION
18.1 Each Carrier to whom capacity in the TIS is assigned pursuant to this
Agreement shall acquire an IRU, for the duration of this Agreement, in
Segment T1, T2 and T3 in which it has no ownership interests, to the
extent required for the use of its assigned capacity (hereinafter
referred to as "Terminal Station IRU"). Such Terminal Station IRU shall
commence on the RFS Date of the TIS or from the date a Carrier first
places any of its capacity into operation, whichever occurs first, and
such Terminal Station IRU shall continue for the duration of this
Agreement. Each Terminal Party shall bear its own Segment T capital
costs in the construction of the TIS.
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18.2 In the event that an Agreement for another cable system utilizing any
Terminal Station of the TIS is terminated prior to the termination of
this Agreement, the owner of the Terminal Station in question with the
agreement of the Parties hereto, shall take all necessary measures to
ensure that the Terminal Station in question will be available for the
TIS for the duration of this Agreement on fair and equitable terms. If
the Terminal Station in question is not available for the landing and
terminating of the TIS for any reason, the relevant owner, with the
agreement of the Parties hereto, shall take all necessary measures to
ensure that another appropriate Terminal Station in the country of that
owner will be available for the TIS for the duration of this Agreement
on terms and conditions similar to those contained in this Agreement.
18.3 For the Terminal Station IRU granted in each of the Terminal Stations
involved, the Carriers hereto shall pay the O&M costs of the relevant
Terminal Station, including additions thereto, allocable to the TIS as
set forth in Schedule D2.
18.4 Where the use of a Terminal Station or of certain equipment situated
therein, such as power supply or testing and maintenance equipment, is
shared by Agreement of the Parties, by the TIS and other communications
systems terminating at that Terminal Station and the O&M costs of such
shared Terminal Station or equipment (not solely attributable to a
particular communications system or systems) shall be allocated among
the systems involved in the proportion in which they use the shared
equipment or facilities. For such purpose, use of a shared Terminal
Station or of shared Terminal Station equipment or facilities therein
attributable to a particular system shall be determined on the basis of
the ratio of (i) the installed cost of the Terminal Station equipment
or facilities (excluding shared equipment or facilities) associated
with the particular Terminal System to (ii) the installed cost of the
Terminal Station equipment of facilities (excluding shared equipment or
facilities) associated with all systems, including the TIS, which make
use of the shared equipment or facilities.
18.5 Capital costs, as used in this Paragraph 18 with reference to the
provision and construction of each of the Terminal Stations (including
land, access roads, cable rights-of-way, ducts and building at such
station), or-causing them to be provided and constructed, or to
installing or causing to be installed Terminal Station equipment, shall
include all expenditures incurred which shall be fair and reasonable in
amount and either to have been directly and reasonably incurred for the
purpose of, or to be properly chargeable in respect of, such provision,
construction, and installation, including, but not limited to, the
purchase costs of land, building costs, amounts incurred for
development, engineering, design, materials, manufacturing, procurement
and inspection, installation, removing (with appropriate reduction for
salvage), testing associated with installation, customs duties, taxes
(except income tax imposed upon the net income of a Party), financial
charges attributable to other Carriers' share of costs, supervision,
overheads and insurance or a reasonable allowance in lieu thereof was
not provided.
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18.6 O&M costs, as used in this Paragraph 18 with reference to each of the
Terminal Stations, shall include costs reasonably incurred in O&M the
facilities involved, including, but not limited to, the cost of
attendance, testing, adjustments, repairs and replacements, customs
duties, taxes (except income tax imposed upon the net income of a
Party) paid in respect of such facilities, billing activities,
administrative costs, financial charges attributable made by or against
other persons in respect of such facilities or any part thereof and
damages or compensation payable by the Terminal Station owner on
account of such claims. Costs, expenses, damages, or compensation
payable to or by the Carriers acquiring a Terminal Station IRU in the
respective; Terminal Station in the same proportions as they share the
costs of the aforementioned Terminal Station.
18.7 Payments due under this Paragraph 18 shall be made in accordance with
the following principles and such other billing and payment procedures
as may be determined by the MC form time to time:
(i) Upon or after the RFS, Carriers acquiring Terminal Station IRU
for the use of its assigned capacity at the relevant Terminal
Station shall bear the portion of the O&M costs of the
Terminal Station specified in Schedule D.
(ii) The Carriers hereto shall be billed individually for, and
shall pay their proportionate shares of, the portion of any
O&M costs of a Terminal Station allocable to this Agreement
incurred after the grant to the Carriers hereto of the
Terminal Station IRU in such Terminal Station becomes
effective and of the portion of the operation and maintenance
costs of the Terminal Station allocable to this Agreement
commenting at the time such grant becomes effective, in
accordance with the following billing method:-
(a) Unless the MC authorizes changes to the procedure for
the rendering of bills associated with the Terminal
Station O&M Costs, the Party shall promptly render
bills, in accordance with this Subparagraph 18.7(iii)
(a) and the billing and payment procedures
established by the F&ASC and approved by the MC, to
each of the Parties for such Party's pro rata shares
of these costs in accordance with Schedule D. Such
bills shall be rendered by the Terminal Parties not
more frequently than quarterly and shall contain a
reasonable amount of detail to substantiate them. On
the basis of such bills, each Party shall pay the
Terminal Parties, such amounts as may be owed by the
end of the calendar month following the calendar
month in which the xxxx was rendered.
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(b) In the case of bills containing costs billed on a
preliminary billing basis, appropriate adjustments
will be made in subsequent bills promptly after the
actual costs involved are determined. As soon as
practicable, the Terminal Parties shall make such
adjustments and render such bills or arrange for such
credits as appropriate due to changes in the cost
actually incurred.
(c) The applicable financial charges and extended payment
charges shall be in accordance with Subparagraph
10.5, 10.6, 10.7 and 10.8.
13.8 With respect to the operation and maintenance costs of Segments T1, T2
and T3 such books, records, vouchers and accounts of costs, as are
relevant, shall be kept and maintained by CAT, SINGTEL and TELKOM for a
period of five (5) years from the date on which the corresponding bills
to the Carriers are rendered. CAT, SINGTEL and TELKOM shall afford the
Parties the right to review said books, records, vouchers, and accounts
of costs for a period of five (5) years. Such right shall only be
exercisable by the F&ASC in accordance with the F&ASC's audit
procedure.
18.9 Notwithstanding Subparagraph 18.1 of this Agreement, a Party thereby
granted a Terminal Station IRU interests in Segment T1, T2 and T3 may,
prior to the commencement of that Terminal Station IRU interest; elect
to renounce its Terminal Station IRU interest entitlement and to
instead have use of Segments T1, T2 and T3 for the duration of this
Agreement on such terms and conditions as are agreed between that
Parties and the owners of said Segments respectively, and in such event
the provisions of Subparagraphs 18.1 -18.9 of this Agreements shall
apply in relation to such use except insofar as they may be modified by
such Agreements. The Subparagraphs 18.9 shall not operate to confer on
a Party any benefit, financial or otherwise, to which that Party would
not otherwise be entitled under this Agreement.
19 OBLIGATION TO PROVIDE TRANSITING FACILITIES TO EXTEND THE TIS CAPACITY
19.1 The Terminal Parties shall use all reasonable efforts to provide and
maintain or cause to be provided and maintained in working order for
the duration of this Agreement, the necessary transit facilities within
their respective Countries as may be reasonably required for extending
capacity in the TIS so as to provide connections to the other
international cables transmission facilities.
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19.2 During the term of the Agreement, each of the Parties hereto in
other than the Terminal Parties countries shall use all reasonable
efforts to furnish and maintain, or cause to be furnished and
maintained, in efficient working order, such transmission facilities in
its country as such other Parties may reasonably require to the
terminals of other international communications systems in such country
for the purpose of handling communications transiting such country.
19.3 The facilities provided pursuant to Subparagraphs 19.1 and 19.2 shall
be suitable for extending capacity in the TIS and shall be furnished
and maintained on terms and conditions which shall be no less favorable
than those granted to other Carriers for transmission facilities of
similar type and quantity transiting the location involved. Such terms
and conditions shall not be inconsistent with applicable government
regulations in the location in which the facilities are located.
19.4 The obligations to provide facilities under this Paragraph 19 shall not
necessarily require the provision of intrinsically digital facilities,
nor the provision of facilities which are Bit Sequence Independent at
rates other than XXX-0, XXX-0, XXX-00 and STM-64.
20 OBLIGATION TO CONNECT THE TIS WITH INLAND SYSTEMS
20.1 Each of the Party hereto, at its own expense, on or after the RFS Date,
shall do or cause to be done, all such acts and things as may be
necessary within its opening country to provide and maintain throughout
the period of this Agreement suitable connection of capacity in the TIS
with appropriate inland communications facilities in its operating
country.
20.2 The use of such inland connections for capacity pursuant to
Subparagraph 14.8 shall be on a near-end basis and provided at the own
expenses of the respective near-end Party.
21 SHARING OF CONTRACTUAL OBLIGATIONS AND LIABILITY
21.1 Each Party shall indemnify and shall keep indemnified and hold harmless
the other Parties and each of their employees, servants, and agents to
the extent hereinafter agreed from and against all claims, demands,
actions, suits, proceedings, writs, judgments, orders and decrees
brought, made or rendered, against them or any of them and all damages,
losses and expenses suffered or incurred by them or any of them
howsoever arising out of or related to any respect of providing,
constructing and maintaining the TIS. This indemnity shall not,
however, relieve the PG of their obligations undertaken pursuant to
Paragraphs 7.
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21.2 If a Party assumes obligations, commits monies in the name or on behalf
of the other Parties pursuant to this Agreement or to an assignment
under the provisions of this Agreement or is obliged by final judgment
of a competent tribunal or under the settlement by the MC to discharge
any claim in damages or other liability, including costs or expenses
associate therewith to any person or entity which is not a Parties to
this Agreement and resulting from any aspect of providing,
constructing, laying or installing the TIS or of its O&M, that Party
shall be entitled to reimbursement from the other Parties in the
proportions set forth in Schedule C.
21.3 If a claim, demand, action, suit, proceeding, writ, judgment, offer or
decree as referred to in Subparagraph 21.1 is brought, made or rendered
against a Party or any Party suffers or incurs any damages, losses or
expenses in respect thereof; that Party shall, as a condition of
reimbursement under Subparagraph 21.2, immediately notify all other
Parties and give them the opportunity to advise and recommend through
the MC on the means to defend or to settle and, to the extent permitted
by the relevant jurisdiction, to be joined in any proceedings relating
thereto.
21.4 Except as provided for in Subparagraph 12.11, as a precondition to the
initiation of any legal proceedings by any Party or Parties on behalf
of and for the benefit of any other Party or Parties, the Party or
Parties planning to initiate such proceedings shall give notice,
appropriate under the circumstances to all other Parties.
21.5 The costs and benefits of any proceedings referred to in Subparagraph
21.4 shall be shared between the Carriers in the manner described in
Subparagraph 21.2.
21.6 If any Party is obliged by a final judgment of a competent tribunal or
under a settlement approved by the MC, to discharge any claim by a
third party, including all costs and expenses associated therewith,
resulting from the implementation of this Agreement, the Party which
has discharged the claim shall be entitled to receive from the other
Parties reimbursement in the proportions as set out in Schedule B.
21.7 If any claim is brought against a Party in connection with the TIS,
the Party shall, as a condition of reimbursement under Subparagraph
21.1, give written notice thereof to the MC as soon as practicable and
shall not admit, liability nor settle, adjust or compromise the claim
without the approval of the MC.
21.8 Upon termination of this Agreement pursuant to Paragraph 28, the
Parties shall not be relieved from any liabilities, costs, damages or
obligations which may arise in connection with claims made by third
parties with respect to the TIS, or any part thereof, or which may
arise in relation to the TIS due to any law, order or regulation made
by any government or international convention, treaty or
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agreement. Any such liabilities, costs, damages or obligations shall be
divided among the Parties in the proportions as set out in Schedule B.
22 OBTAINING OF APPROVAL
22.1 The performance of this Agreement by the Parties is contingent upon the
obtaining and continuance of such governmental approval, consent,
authorization, licenses, and permits as may be required or be deemed
necessary by the Parties and as may be satisfactory to them, and the
Parties shall use all reasonable efforts to obtain and to have
continues in effect such approval, consent, authorization, licenses,
and permits.
22.2 CAT shall handle matters in Thailand, SINGTEL shall handle matters in
Singapore and TELKOM shall handle matters in Indonesia relating to the
obtaining and continuance of governmental approval, consent,
authorization, licenses, and permits for the landing, construction and
operation of the TIS in their respective countries.
23 ASSIGNMENT OF RIGHTS AND OBLIGATIONS
Except as otherwise provided for in Paragraphs 14, 15, 16 and 24,
during the continuance of this Agreement, no Party shall, without the
consent of the other Parties sell, assign, transfer, or dispose of its
rights and obligations under this Agreement or of any interest in the
TIS except to a legal successor of, such Party, in which case written
notice shall be given in a timely manner by the Party making such sale,
assignment, transfer, or disposition and in the case if any assignment
of capacity in the TIS pursuant to this Paragraph 23, the consent of
the other Party or Parties to whom the capacity is jointly assigned is
obtained.
24 DEFAULT
24.1 If any Party fails to make any payment required by this Agreement on
the date when it is due and such default continues for a period of at
least one (1) month after the payment due date, the NA or Terminal
Parties shall notify the billed Party and the MC in writing the status
of the matter and its intent to reclaim the Party's capacity as
provided for in this Paragraph 24, if full payment is not received
within one (1) month after such notification to the billed Party. If
full payment is not received within such specified period, the Party's
capacity will be immediately reclaimed unless otherwise determined by
the MC, Unless otherwise decided by MC, the default in payment by any
Party shall not in any way increase
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the liability of the other Parties in respect of their obligations for
payments under the Supply Contract required by this Agreement.
24.2 The MC shall consider any extenuating circumstances not within the
specific control of the billed Party in determining whether or not to
defer the reclamation of the capacity assigned to such billed Party
pursuant to Subparagraph 24.1 above or, under what conditions, if any,
the defaulting Party may be re-admitted as a Party to this Agreement
after such reclamation. In the event of reclamation, the defaulting
Party shall not be entitled to any payment or credit for the reclaimed
capacity, nor is the defaulting Party entitled to any reimbursement of
any amounts it had paid under this Agreement. All rights of a
defaulting Party under this Agreement shall terminate as of the time
all its capacity in the TIS is reclaimed: and concurrent with such
reclamation of capacity, the defaulting Party will no longer be deemed
to be a Party to this Agreement. Such reclamation shall not relieve the
defaulting Party from its obligations under this Agreement, including
but not limited to the payment of its unpaid accounts, which have been
incurred prior to the actual reclamation. The MC shall determine
arrangements for disposition of any reclaimed capacity. In such
circumstances, the Schedules shall be revised to reflect the default of
a Party and the reallocation of interests pursuant to the arrangements
determined by the MC.
24.3 Notwithstanding Subparagraph 24.2, reclamation of a Terminal Party's
capacity will not release the Terminal Party from providing, operating
and maintaining its respective Terminal Station until a reasonable
agreement is negotiated in order to ensure the continuous operation of
the said Terminal Party's Terminal Station after reclamation of its
capacity.
24.4 If a Party files a petition in bankruptcy, or if a trustee in
bankruptcy, receiver, conservator or similar officer is appointed to
take charge of all or party of a Party's property, the Party shall send
all notices related to such proceedings to the Terminal Parties and NA
until notified otherwise.
25 SETTLEMENT OF DISPUTES AND INTERPRETATION OF AGREEMENT
25.1 If a dispute should arise under this Agreement between or among the
Parties, they shall make every reasonable effort such dispute. However,
in the event that they are unable to resolve such dispute, the matter
shall be referred to the MC which shall either resolve the matter or
determine the method by which the matter should be resolved (including
arbitration if appropriate). This procedure shall be the sole and
exclusive remedy for any dispute that may arise under this Agreement
between or among the Parties. The performance of this Agreement by the
Parties shall continue during the resolution of any dispute.
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25.2 If any difference shall arise between or among the Parties or any of
them in respect of the interpretation or effect of this Agreement or
any part or provision thereof or their rights and obligations
thereunder, and by reasons thereof there shall arise the need to decide
the question by what municipal or national law this Agreement or such
part or provision thereof is governed, the following facts shall be
excluded from consideration, namely that this Agreement was made in a
particular country and that it may appear by reason of its form, style,
language or otherwise to have been drawn preponderantly with reference
to a particular system of municipal or national law; the intention of
the Parties being that such facts shall be regarded by the Parties and
in all courts and tribunals wherever situated as irrelevant to the
question aforesaid and to the decision thereof.
25.3 In the event the dispute is not resolved by MC within agreed timeframe.
The Parties may refer the dispute to arbitration, in accordance with
the United Nations Commission on International Trade Law (UNCITRAL)
Arbitration Rules as at present in effect with the following
conditions:
(i) The place of arbitration shall be agreed by the Parties in
disputed, however, if they are unable to agree the place of
arbitration shall be Hong Kong; and
(ii) The language to be used in the arbitration proceedings shall
be English.
(iii) The tribunal shall consist of three arbitrators, who shall be
selected by agreement of the Parties in dispute.
(iv) The award rendered by arbitration shall be final and binding
upon the Parties in dispute.
(v) All costs related to arbitration under this Paragraph 25 shall
be borne by the Parties in dispute unless otherwise determined
by the MC.
26 RELATIONSHIP OF PARTIES
The relationship between or among the Parties shall not be that of
partners and nothing herein contained shall be deemed to constitute a
partnership between or among them, and the common enterprises among the
Parties shall be limited to the express provisions of this Agreement.
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27 PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS
Each Party specifically reserves, and is granted by each of the other
Parties, in any action, arbitration or other proceeding between or
among the Parties or any of them in a country other than that Party's
own country, the right of privileges, in accordance with the laws of
that Party's own country, with respect to any documents or
communications which are material and pertinent to the subject matter
of the action, arbitration or other proceeding in which privilege could
be claimed or asserted by that Party in accordance with those laws, and
such privilege, whatever may be its nature and whenever it may be
claimed or asserted, shall be allowed to that Party as it would be
allowed if the action, arbitration or other proceeding has been brought
in a court of, or before an arbitrator in, the Party's own country.
28 DURATION OF AGREEMENT AND REALIZATION OF ASSETS
28.1 This Agreement shall become effective on the date and year first above
written and shall continue in operation for at least an initial period
of fifteen (15) years following the RFS Date (hereinafter referred to
as "Initial Period") and shall be terminable by agreement of the
Parties. However, any Party may terminate its participation in this
Agreement at the end of the Initial Period or any time thereafter by
giving not less than one (1) year prior notice thereof, in writing, to
the other Parties.
28.2 This Agreement may be terminated at any time during the Initial Period
by agreement in writing of all Parties. If unanimous agreement cannot
be reached between all the Parties for the retirement of the TIS during
its specified" useful life, this subject matter shall be referred to
the MC for such resolution in accordance with Subparagraph 3.4 but in
this case requiring a seventy five per cent (75%) majority of the total
voting interests as specified in Schedule B.
28.3 If a Terminal Party terminates its participation in this Agreement
pursuant to Subparagraph 28.1 of this Agreement, after the Initial
Period, the remaining Parties and said Terminal Party will negotiate a
reasonable agreement in order to ensure the continuous operation of
said Terminal Party's Terminal Station after the Initial Period.
28.4 Upon the effective date of termination of participation of a Party,
Schedules A, B, C, D, E and F of this Agreement shall be appropriately
modified. The remaining Carriers shall assume the capital, O&M
interests of the Party terminating its participating in proportion to
their allocation of costs as specified in Schedule C and D immediately
preceding such effective date of termination, except for the continuing
rights and obligations of the terminating Party as specified in
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Subparagraphs 28.6 and 28.7. No credit for capital cost will be made to
a Party that terminates its participation in accordance with
Subparagraph 28.1.
28.5 The interests of a Party or Parties in the Segment S of the TIS which
come to an end by reason of the termination of its or their
participation in this Agreement or the termination of this Agreement
shall be deemed to continue for as long as is necessary for effecting
the purposes of Subparagraphs 28.6 and 28.7 and in the case of
interests which come to an end by reason of a Party or Parties
terminating its or their participation in this Agreement, the Segment S
shall accordingly thereafter be held with respect to such interests at
the first time any Party terminates its participation in this
Agreement, upon the appropriate trusts by the Parties who are the
owners thereof. Should the doctrine of trusts not be recognized under
the laws of the country where the property to which such interests
relate is located, then the Party or Parties who are the owners thereof
shall nevertheless be expressly bound to comply with the provisions of
Subparagraphs 28.6 and 28.7.
28.6 Upon termination of this Agreement, the Parties shall use their efforts
to liquidate the Segment S of the TIS within a reasonable time by sale
or other disposition between the Parties or any of them or by sale to
other entities or persons, but no sale or disposition shall be effected
except by agreement between or among the Parties who have interests in
the subject thereof at the time this Agreement is terminated. In the
event agreement cannot be reached, the decision will be carried on the
basis of a simple majority of the total voting interests as specified
in Schedule B. The costs or net proceeds of interests of every sale or
other disposition shall be divided between or among the Parties who
have or were deemed to have interests in the subject thereof at the
time this Agreement is terminated, in the proportions in which such
Party's allocation of costs is specified in Schedule C immediately
preceding the first time any Party terminates its participation in this
Agreement or this Agreement is terminated pursuant to Subparagraph
28.1, whichever occurs first. The Parties shall execute such documents
and take such action as may be necessary to effect any sale or other
disposition made pursuant to this Paragraph 28.
28.7 Unless the MC shall otherwise determine, a Party's termination of its
participation in this Agreement or the termination of this Agreement
pursuant to Subparagraph 28.1 shall not relieve the Party or Parties
from any liabilities, costs, damages or obligations which may arise in
connection with claims made by third Parties with respect to the TIS,
the facilities that comprise the TIS or any part or portion thereof, or
which may arise in relation to the TIS due to any law, order or
regulation made by any government or supranational legal authority
pursuant to any international convention, treaty or agreement. Any such
liabilities, costs, damages, or obligations shall be divided among the
Parties in the proportions in which such Parties allocation of costs is
specified in Schedule C immediately preceding the first time any Party
terminates its participation in this Agreement or
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this Agreement is terminated pursuant to Subparagraph 28.1, whichever
occurs first.
29 BILLS PAYMENTS AND NOTICES
29.1 Unless otherwise designated by the Party concerned, NA and Terminal
Parties shall render bills under this Agreement addressed to the
respective Parties or Carriers by airmail, dispatch of which shall be
advised by facsimile or e-mail giving a summary of the payments due and
expenses concerned.
29.2 Payments under this Agreement shall be made by wire transfer to the
designated bank account indicated in the bills rendered.
29.3 All amounts billed or payable under this Agreement shall be paid in
full, free and clear of any taxes, duties or other withholdings.
Charges incurred for the wire transfer pursuant to Subparagraph 29.2
shall be borne by the remitting Party or Carriers.
29.4 Notices issued under this Agreement shall be addressed to the
respective Parties or Carriers by airmail, express courier, facsimile
or e-mail, as appropriate.
30 WAIVER
The waiver by any Party of a breach of, or a default under, any of
provisions of this Agreement, or the failure of any Party, on one or
more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder shall not thereafter be
construed as a waiver of any subsequent breach or default of a similar
nature, or as a waiver of any such provision, right, or privilege
hereunder.
31 PARAGRAPH HEADINGS
The paragraph headings do not form part of this Agreement and shall not
have any effect on the interpretation thereof.
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32 EXECUTION OF AGREEMENT
This Agreement shall be executed in one (1) original in the English
language. Identical counterparts may be executed and when so executed
shall be considered as an original. Such counterparts shall together,
as - well as separately, constitute one and the same instrument. TELKOM
shall be the custodian of the original and shall provide certified
photocopies to Parties to this Agreement.
33. ALTERATIONS AND ADDITIONS
33.1 Subject to Subparagraph 33.3, this Agreement and any of the provisions
hereof may be altered or added to only by another agreement in writing
signed by a duly authorized person on behalf of each and every Party to
this Agreement. Only one (1) original of such supplemental agreement
shall be executed.
33.2 TELKOM shall be responsible for the prompt distribution of certified
photocopies of any amendments or supplemental agreements hereto to all
other Parties and shall retain such signed original amendments or
supplemental agreements. Such Party shall accord access to such
documents to a requesting Party upon reasonable notice. A notarized
copy of any amendment or supplemental agreement shall be provided to a
Party upon request and at the requesting Party's expense.
33.3 Subparagraph 33.1 shall not apply to any Schedule modified in
accordance with any other provision of this Agreement and any Schedule
so modified shall be deemed to be a part of this Agreement in
substitution for the immediately preceding version of that Schedule.
33.4 In the case of a Party changing the categorization of its capacity, the
modified Schedules shall be certified by the NA on behalf of the
Parties. The NA shall require in such instances written instructions by
Parties wishing to reassign capacity and shall obtain the MC's
approval, which can be by correspondence. The NA shall be responsible
for issuing such modified Schedules.
34 SUCCESSORS BOUND
This Agreement shall be binding on the Parties, their successors, and
permitted assigns.
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35 FORCE MAJEURE
If any Party cannot fulfill its obligations in this Agreement due to an
event beyond its reasonable control, including but not limited to
lightning, flood, exceptionally severe weather, fire or explosion,
civil disorder, war or military operations, national or local
emergency, anything done by government or other competent authority, it
shall not be liable to the other Parties for such delay in performance
or failure to perform and shall, give notice to the other Parties as
soon as reasonably practical after the event has occurred.
36 SEVERABILITY
If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement, but rather the entire
Agreement shall be construed as. If not containing the particular
invalid or unenforceable provision, or provisions, and the rights and
obligations of the Parties shall be construed and enforced accordingly.
37 ENTIRE AGREEMENT
37.1 This Agreement supersedes all prior or written understandings between
or among the Parties and constitutes the entire agreement among the
Parties with respect to the subject matter of this Agreement.
37.2 This Agreement supersedes the MOU. Any liabilities which any Party has
incurred arising out of or by virtue of the MOU shall be dealt with in
accordance with the provisions of this Agreement.
38 CONFIDENTIALITY
38.1 All data and information that is acquired or received by any Party in
connection with TIS in anticipation of or under this Agreement shall be
held confidential and shall not be divulged in any way to any third
party, without the prior approval of the Management Committee.
38.2 Notwithstanding Subparagraph 38.1, any Party may, without such
approval, disclose such data and information to:
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(i) the extent required by any applicable laws, or the
requirements of any recognized stock exchange in compliance
with its rules and regulations, or in the case of a Party
wholly owned by a sovereign government, by the rules of
governance of the Party; or
(ii) any government agency lawfully requesting such information; or
(iii) any Court of competent jurisdiction acting in pursuance of its
powers.
38.3 Any Party may disclose such data and information to such persons as may
be necessary in connection with the conduct of the operations of TIS
upon obtaining similar undertaking of confidentiality from such persons
to whom such information may be disclosed.
38.4 Each Party shall remain bound by the provisions of this Paragraph 38
during the period of this Agreement and for the period of five years
following termination of this Agreement.
39 ADMISSION OF ADDITIONAL PARTIES
39.1 The MC shall be empowered on one or more occasions prior to the RFS
Date to consider the admission of Carrier not signatories hereto as
additional parties (hereinafter called "Additional Parties") provided
the following conditions are met:
(i) the Carrier incorporated as a recognized international
telecommunications operator only after this Agreement was
executed by the Parties, in which case the said Carrier shall
be required to furnish satisfactory documentation of such
incorporation to the MC which shall decide on the issue; or
(ii) the Carrier incorporated as a recognized international
telecommunications operator before this Agreement was executed
by the Parties but at a timeframe which was deemed by the MC
as insufficient for the Carrier to be admitted as a Party to
this Agreement; and
(iii) the Carrier in question agrees to acquire an investment share
in the TIS at least correspond to a level of MIU to be
determined by the MC.
39.2 The admission of Additional Parties pursuant to subparagraph 39.1 shall
be at the sole discretion of the MC, and nothing in this Paragraph 39
shall be construed as assuring the admission of Carrier not signatory
hereto as an Additional Party.
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39.3 In being so admitted, an Additional Party shall acquire the same rights
and obligations as the other Parties subject to the followings:
(i) the admission of Additional Parties shall be on terms and
conditions to be determined by the MC;
(ii) the Additional Party accepts responsibilities to pay its
proportionate share of any cost incurred under this Agreement
prior to its becoming a Party; and
(iii) the Additional Party accepts and abides by the terms and
conditions of this Agreement and all decisions properly taken
under this Agreement prior to its becoming a Party.
39.4 Parties acquiring jointly-assigned MIUs with Additional Parties
admitted pursant to this Paragraph 39 shall be permitted to acquire
such capacity on an ownership basis at the time such Additional Parties
are admitted to this Agreement.
39.5 Additional Parties shall be admitted by supplemental agreements to this
Agreement. The Terminal Parties are hereby authorized to act as
representative and agents of all Parties to execute such supplemental
agreements for the Additional Parties. Such supplemental agreements
shall be approved by the MC prior to execution. Schedules A, B, C, D, E
and F shall be appropriately modified.
40 COMPLIANCE WITH LAW
The Parties shall comply with all applicable laws of all countries,
territories and places having jurisdiction over the activities
performed under or contemplated by this Agreement.
41 INTEGRATION WITH OTHER CABLE NETWORK
The Parties hereto may consider to integrate the TIS with other cable
network. The integration arrangement shall be subject to MC decision.
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TESTIMONIUM
IN WITNESS WHEREOF, the Parties hereto have severally subscribed these presents
or caused them to be subscribed in their names and on their behalf by their
respective officers thereunto duly authorized.
For and on behalf of
The Communications Authority of Thailand
/s/ Kittin Udomkiat
--------------------------
Mr. Kittin Udomkiat
(Senior Executive Vice President (Telecommunications System))
For and on behalf of
PT Telekomunikasi Indonesia Tbk
/s/ Kristiono
--------------------------
Mr. Kristiono
(President Director/ CEO)
For and on behalf of
Singapore Telecommunications Limited
/s/ Xx Xxxx Sum
--------------------------
Xx. Xx Xxxx Sum
(Vice President, International Network)
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