EXHIBIT 10.24
MEDITERRANEAN CABLE MAINTENANCE AGREEMENT
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Confidential Treatment has been requested with respect to the portions of
this agreement marked with three asterisks (***) and the redacted material
has been filed separately with the Securities and Exchange Commission.
MECMA 2
MEDITERRANEAN CABLE MAINTENANCE AGREEMENT
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MECMA shall come into effect on 1st JANUARY 1999 and will incorporate the
following Articles outlining the following arrangements, responsibilities and
requirements of the Agreement:
ARTICLES
1. Definitions
2. Previous Agreements
3. Purpose of the Agreement
4. Management Committee
5. Provision of Cableships and Base Ports
6. Use of Cableships
7. Maintenance facilities on board the Cableships
8. Use and Operation of the Depot(s)
9. Use of Spare Submersible Plant
10. Transfer of Spare Submersible Plant
11. Notification of Cableship Requirement
12. Planning and Direction
13. Cableship Base Port
14. Clearances
15. Periods of Cableship Unavailability
16. Prerogatives of the Commander
17. Distress and Salvage
18. Inclusion and Deletion of Additional Parties and Scheduled Cables
19. Basis of Cableships Cost Allocation
20. Billing, Accounting and Payment Arrangements
21. Responsibility for the Ships Schedules and Reports
22. Liability and Indemnity
23. Insolvency
24. Insurance
25. Force Majeure
26. Duration of Agreement
27. Governing Law
28. Arbitration
29. Relationship of the Parties
30. Status of Cableships and Associated Facilities
31. Amendments
32. Assignments
33. Execution and Counterparts
34. Interpretation
35. Entire Agreement
36. Headings
37. Representatives and Correspondence
38. Notices
39. Publicity
40. Confidential Information
41. Performance of Agreement
42. Severability
43. Waiver
It also includes a list of Schedules, which outline the technical aspects,
interested parties and provide the instruments for pricing and costing.
SCHEDULES
A. List of parties
A1. List of Parties to this Agreement - Maintenance Authorities
A2. List of Parties to this Agreement - Cableships Operators
B. List of Scheduled Cables
C. Cableships Fixed Standing Charges allocation and Running Costs
C1. Standing Charges
C2. Running Costs
C3. Estimated for 1998
D. MECMA and alternative Depots
D1. CATANIA Depot
D2. KALAMATA Depot
D3. LA SEYNE/MER Depot
D4. VALENCIA Depot
D5. Other Depots
E. Proforma Document of Accession
F. Previous Cableship Agreements
G. Management Committee Terms of Reference
H. Basic Cableship Technical Criteria
H.0. BASIC CABLESHIP TECHNICAL CAPABILITIES
H.1. XX XXXXX
H.2. CS TELIRI
H.3. CS TENEO
H.4. CS CERTAMEN
H.5. STANDARD/SPECIFIC CABLES
I. Representatives of the Parties and Mailing addresses and contacts for
Financial and Maintenance Purposes
J. Sailing/repair standard duration
1. DEFINITIONS
In this Agreement, the following terms shall have the meaning hereby assigned to
them:
"AGREEMENT" Means this Agreement, including any amendments. This
Agreement may also be referred to as "MECMA".
"APPOINTED PARTY" Means a Party designated from time to time
by the Management Committee for performing any
possible duties assigned to it and for preparing
any document pursuant to this Agreement.
"ASSIGNED PORT" Means the port from which a Cableship is at
any given time required to operate under this
Agreement pursuant to the Cableship Programme and
may include, where appropriate, its Base Port.
"AVAILABLE Means, for a Cableship, when it is not unavailable
for any of the reasons described in Article 15 and
"Availability" shall be construed accordingly.
"AVAILABLE CABLESHIP DAYS" Means those days during a Financial Year
when an individual Cableship or the
Cableships collectively, as the context
requires, are Available.
"BASE PORT" Means the port identified as such in Article
5a, where the relevant Cableship will
normally be based.
"CABLESHIP" Means any of the Vessels identified in Article 5(a).
"CABLESHIP FIXED STANDING Means the annual amount indicated in, or determined in
CHARGES" accordance with Article 19(a), 19(b), and 19(c) for the
designated Cableship.
"CABLESHIP OPERATORS" Means the Parties responsible for the
operation of the Cableships and identified
as such in Article 5 for the relevant
Cableship; "Cableship Operator" shall mean
anyone of such Parties.
"CABLESHIP PROGRAMME" Means the programme showing the activities, locations
and movements of the Cableships as more particularly
described in Article 6.
"CENTRAL BILLING PARTY" Means the Party responsible for: (a) performing all
billing and associated financial functions under this
Agreement: (b) Assembling the budget and actual data
to be received from Ships Operators. This Party may
also be referred to as "CBP".
"C&MA" Means, for any Scheduled Cable, the construction and
maintenance agreement, or equivalent governing
agreement, which has been executed by the owners of
that Scheduled Cable.
"COMMANDER" Means the person designated as such by the Cableship
Operator and charged with the responsibility for the
safety and day-to-day operation of its Cableship and
safety of the Cableship personnel.
"CONSTRUCTIVE TOTAL LOSS" Means a situation where the cost of repairs to the
Cableship and/or replacement thereof equals or exceeds
the insured value.
"DOMESTIC CONSUMER PRICE Means the relevant Consumer Price Index for all items
INDEX" which is a monthly statistic officially published in "Main
Economic Indicators" by OECD, which indicates on a
weighted average price index basis the current overall
rate of inflation for each country.
"EASTERN PORT" Means an Assigned Port located in the Area east of
20(0)00E longitude.
"FINANCIAL YEAR" Means consecutive twelve-month periods ending on the
31st of December of each year.
"FIXED STANDING CHARGES" Means the annual charge as specified in Schedule C1, which is
charged by the Cableship Operator in connexion with its Cableship
and associated services.
"MAINTENANCE & IMPROVEMENT" Means work carried out on a MECMA Cable involving the use
of a Cableship, at the request of a Maintenance Authority
in order to reduce the susceptibility of the MECMA
Scheduled Cable to future service-affecting faults.
"MAINTENANCE AUTHORITY" Means any Party or group of Parties, as listed in Schedule
Al, primarily responsible for, or which acts as agent on
behalf of other parties for the repair and maintenance of
a MECMA Scheduled Cable.
"MANAGEMENT COMMITTEE" Means the committee formed by the Parties pursuant to
Article 4.
"MECMA" Means this Agreement.
"NETWORK FIXED STANDING Means the provisional annual estimate of the total fixed
CHARGES" amount due to Cableship Operators calculated in
accordance with Article 19 (e).
"OPERATION" Means Repair, Maintenance & Improvement, or other
work performed under this Agreement
"OPERATIONAL ZONE" Means the larger of the sea areas including
Mediterranean Sea, Black Sea and Red Sea, bounded
either by the Scheduled Cables or by meridian lines
through Aden in the East and Gibraltar in the West.
The Management Committee may also agree to further
extend the Operational Zone or include additional cables
located in the part of the Atlantic bounded by latitude
41DEG.1ON on the north, latitude 28DEG.N on the South and
longitude 16DEG.15W on the west, as requested by
Maintenance Authorities.
"OUTSIDE WORK" Means work outside the terms of this Agreement carried out
by a Cableship and for which neither Standing Charges nor
Running Costs are chargeable in any manner under this
Agreement.
"PARTIES" Means the parties identified in Schedule A which have
signed this Agreement on the signature page hereto;
it includes any party which is subsequently admitted
under Article 18 and has signed an agreement in the
form provided in Schedule E hereto; Party shall mean
any one of such.
"PIBOR" Means the Paris Interbank Offered Rate calculated by
AFB (Association Francaise des Banques) and Dow Xxxxx
Telerate, and based on the arithmetic mean, rounded
to 1/16th of 1 % of the offered interest rates quoted
by the market of reference banks at 11h30 each
working day.
"RFS DATE" Means, for a Scheduled Cable, the date at which the
relevant Maintenance Authority and/or its co-owners
if any agree to place such cable into operation for
customer service.
"REPAIR" Means work carried out on a Scheduled Cable involving
the use of a Scheduled Cableship, at the request of a
Maintenance Authority in order to remedy a fault
suffered by the Scheduled Cable, howsoever caused.
"REFIT" Means statutory maintenance work or any other
maintenance work carried out on a Scheduled Cableship
and identified as "refit" in the Cableship Programme;
"RUNNING COSTS" Means incremental costs for a Cableship, as defined
in Schedule C2, incurred in connection with the
operation of a Cableship.
"SCHEDULED CABLE" Means any submarine telecommunications cable system
or part thereof to be repaired and maintained under
this Agreement and which is listed in Schedule B.
"SCHEDULED CABLESHIP" Means any of the Cableships when assigned to the
Agreement.
"SPARE SUBMERSIBLE PLANT" Means the spare submarine cable, repeaters, branching
units and equalisers and other associated spare
submersible parts of a Scheduled Cable.
"SPECIFIC PRACTICES" Means any submarine cable maintenance practices and
equipment which are not included in Standard Practices.
"SPECIFIC SCHEDULED CABLE" Means a Scheduled Cable which is not a Standard
Scheduled Cable and which requires the use of
Specific Practices in its maintenance.
"STANDARD PRACTICES" Means the submarine cables maintenance practises and
the equipment which are specified in Schedule H and
which the Cableships are capable of supporting.
"STANDARD SCHEDULED CABLE" Means a Scheduled Cable which is capable of being
maintained in accordance with the Standard Practices.
"STANDBY" Means any period when a Cableship is not engaged on an
Operation but is Available.
"SUBMERSIBLE PLANT" Means that part of a Scheduled Cable that is between
but excludes the respective beach joints of the
landing points.
"TOTAL LOSS" Means a situation where the Cableship is destroyed or
so damaged as to cease to be a thing of the kind
insured, or where the cost of repairs and/or
replacement equals or exceeds the insured value.
"UJ" Means universal jointing which is required for the
Cableships as specified in Schedule H.
"QUJ" Means universal quick jointing which is required for the
Cableships as specified in Schedule H.
"UNITS OF REPARTITION" Means units which are allocated to Scheduled Cables
and their respective Maintenance Authorities; the
values of these units are derived as specified in
Schedule B and are specified in Schedule B1 and B2 as
may be revised from time to time pursuant to this
Agreement.
2. COMING INTO FORCE OF THE AGREEMENT AND PREVIOUS AGREEMENTS
Prior to the effective date of this Agreement, certain Parties hereto had rights
and obligations under modified bilateral agreements which are listed in Schedule
F herein (called "previous agreements for the purposes of this Article). Said
Parties agree to take any necessary steps so as to terminate as soon as possible
such previous agreements under their relevant provisions for termination. The
Parties agree that until such termination is effective, the cables to be
maintained and repaired under these existing Cableship agreements will be
maintained and repaired by the Cableship Operators under the same operational
and financial conditions as defined hereafter.
3. PURPOSE OF THE AGREEMENT
The purpose of this Agreement is to define the terms and conditions under which
the Cableship Operators shall provide to the Maintenance Authorities services
for repairing, maintaining and improving the submersible plant by means of
Cableships and any other appropriate submersible tools at high quality standard,
with the aim of reaching an efficient and economical solution for the mutual
benefit of all the telecommunication operators and users of the cables listed in
Schedule B of this Agreement.
4. MANAGEMENT COMMITTEE
(a) The Parties shall form a Management Committee, whose terms of
reference are defined in Schedule G, to assist mutual co-operation
and to ensure the efficient management of all operations required
by the Agreement.
(b) Each and every Maintenance Authority and Cableship Operator shall
have one representative in the Management Committee.
(c) Meetings of the Management Committee shall be held as necessary
but not less than once a year, at a time and place convenient to
the majority of the Maintenance Authorities.
(d) Meetings of the Management Committee may be convened at the
discretion of the Chairman and additionally shall be convened by
the Chairman when requested to do so by one or more Maintenance
Authorities representatives whose voting rights as outlined in
Article 4.f herein total at least five (5) percent of the total of
the voting rights or by any four (4) or more Maintenance
Authorities representatives regardless of their voting rights. The
Chairman shall, in normal circumstances, give at least forty five
(45) days' notice to all representatives of the convening of
a meeting of the Management Committee and, at that time, shall
furnish a proposed agenda therefor.
(e) The quorum for any meeting shall be at least fifty percent of the
Maintenance Authorities (present or represented), who represent at
least three quarters of weighted votes (as defined in Article 4.f
below), such quorum to be maintained throughout the meeting.
(f) Voting rights in the Management Committee shall be held only by
Maintenance Authorities, on the basis of the percentage of
"Liability for Payment" for each Maintenance Authority as shown in
Schedules B.1.1, B.2.1 and B.3 of the Agreement, and listed in
Schedule A.I. A Maintenance Authority's representative may attend
meetings and vote as necessary on behalf of more than one
Maintenance Authority providing advance notice to this effect is
provided to the Chairman by the Maintenance Authorities being
represented.
(g) The Chairman shall be elected by a simple majority of the
Maintenance Authorities' representatives present and voting at a
meeting, such Chairman to serve thereafter until the next meeting.
(h) The Management Committee shall endeavour to take decisions
unanimously. However, if it fails to reach unanimous agreement, it
shall take decision by a simple majority of the weighted vote (as
defined in Article 4f above cast in the meeting representing at
least three Maintenance Authorities.
(i) If a Management Committee decision has to be taken before a
meeting can be held, the Chairman shall consult by telephone or
fax with all the Maintenance Authorities representatives (and
approach not less than three-quarters of such Maintenance
Authorities representatives) and request the said representatives
to make and confirm their views by fax. Any decision shall be
taken unanimously. However, if it fails, decisions shall be taken
by a simple majority of the weighted vote (as defined in Article
4.f above) cast of the answers representing at least three
Maintenance Authorities. The Chairman shall give prompt notice of
the results of any such decisions taken by correspondence in this
way, and any decisions so taken shall be binding all the Parties.
(j) To assist it in the performance of the duties assigned to it
hereunder, the Management Committee shall be at liberty to set up
any sub-committee or working party as it sees fit and necessary.
Membership and terms of reference of such sub-committee or working
party shall be decided by the Management Committee. Such
sub-committee or working party shall elect a Chairman from among
participating representatives at each meeting, who shall report
and make recommendations on its behalf to the Management
Committee.
(k) All major activities of any sub-committee or working party in
accordance with its terms of reference and all recommendations to
the Management Committee shall first be agreed by consensus. If
they cannot reach a decision, they shall refer the matter to the
Management Committee.
5. PROVISION OF CABLESHIPS AND BASE PORT
(a) Cableships and Base Ports
The Cableships and their respective Base Ports are as follows
(i) The CS XXXXXXX XXXXX, which is owned by FRANCE CABLE &
RADIO and operated by FRANCE TELECOM and whose Base Port is
LA SEYNE SUR MER, FRANCE.
(ii) The CS TELIRI or CS CERTAMEN, which are owned and operated
by ELETTRA and whose Base Port is CATANIA, ITALY.
(iii) The CS TENEO, which is owned and operated by TEMASA and
whose Base Port is VALENCIA, SPAIN.
(iv) An Eastern Port shall be proposed by the Cableship
Operators and approved by the Management Committee to be
considered as an Assigned Port for the purpose of this
Agreement. Subject to the maximum capacity of the Cableship
concerned, and in accordance with Article 9, the Cableship
Operators so assigned may be requested by the Maintenance
Authorities responsible for the spare plant concerned to
carry a stock of all varieties of cable, repeaters and
jointing kits to face any kind of Repairs whilst on Standby
in an Eastern Port, without sailing back to a west
Mediterranean cable depot.
On and from the date specified in Article 26 herein, the Repair
and Maintenance & Improvement of the Scheduled Cables shall be
carried out by the three Cableships, such Cableships being as
specified in Schedule H.
Notwithstanding the provisions of Article 15, in the event of the
Parties requiring a cableship, in addition to the Cableships
listed in Article 5a, to be permanently entered into this
Agreement such additional cableship shall only be entered subject
to the following conditions: - an Amendment shall be required to
this Agreement in accordance with Article 31;
-such additional cableship shall be selected for inclusion in this
Agreement only by means of an open tender invitation and
adjudication exercise which shall be offered to all known
qualified cableship suppliers.
(b) Cableship Programme
The Cableships shall be primarily assigned to undertake Repair,
Maintenance & Improvement under this Agreement and shall be made
available according to a Cableship Programme so as to have at
least two Cableships permanently available for the Repair,
Maintenance & Improvement of all Scheduled Cables as listed in
Schedule B in the Operational Zone as detailed in Article 6 below.
This Cableship Programme shall also include the periods of
coverage from an Eastern Port as may be agreed by the Management
Committee in accordance with Article 13. Normally these periods
will amount not less than 6 months per Agreement year.
(c) Each Cableship Operator at the outset of this Agreement
individually warrants, and will exercise due diligence throughout
the term of this Agreement to ensure that the Cableship it
provides under this Agreement is tight, staunch and strong and fit
for telecommunications cable work and each Cableship Operator
shall exercise due diligence to maintain its Cableship to ensure
that it is equipped with the necessary gear to a standard to
enable the Cableship Operator to fulfil its obligations under this
Agreement. Each Cableship Operator shall ensure that when at sea
its Cableship is furnished with a complete complement of suitably
qualified and competent officers and seamen for the proper
functioning of the Cableship so as to fulfil the Cableship
Operator's obligations under this Agreement.
(d) The Cableship Operator shall carry out Repair and Maintenance &
Improvement expeditiously and in accordance with internationally
accepted standards in use in other agreements, and may be subject
to reasonable penalty to be defined by the Management Committee
if, under normal circumstances, the sailing time from her Assigned
Port or repair time on cable ground exceeds substantially or
repeatedly the standard duration as given in Schedule L, and does
not remedy such failure after receipt of notice from the
Management Committee specifying such failure. The Cableship
Operator shall not be responsible if he can prove the absence of
negligence and wilful misconduct.
If, in the opinion of the Cableship Operator, a repair requires
the use of equipment in addition to the Cableships' normal cable
repairing gear, such additional equipment including but not
limited to diving services and support vessels, then the Cableship
Operator shall use reasonable endeavours to provide, with the
consent of the Maintenance Authority responsible for a particular
operation, such
additional services and equipment as it deems necessary to carry
out any such repair in an expeditious manner. The cost of such
additional facility shall be regarded as Running Costs and charged
as follows:
(i) the cost of additional facilities provided directly in
respect of a particular repair or maintenance operation
shall be charged directly to that operation in accordance
with Article 19(j) and
(ii) any costs incurred in making such additional facilities
generally available, including but not limited to annual
retainers in respect of diving services and other equipment
hire or depreciation charges, shall be allocated among all
appropriate Scheduled Cables in accordance with Article
19(p).
(e) Each Cableship Operator shall ensure that its Cableship shall meet
the technical criteria agreed between and amongst the Parties and
attached hereto as Schedule H. Should any of the Maintenance
Authorities require any improvements, modifications or additions
to be carried out to the Cableships which are beyond the agreed
technical criteria defined in Schedule H, then the nature and cost
of such improvements and modifications and associated increase to
the Cableship Fixed Standing Charges shall be subject to the prior
agreement of the Management Committee and the Cableship Operator
before such improvements and modifications are carried out.
(f) For the duration of this Agreement, additional facility (in terms
of Cableships and any other facility) may be added to this
Agreement by written agreement of all the Parties to this
Agreement.
6. USE OF CABLESHIPS
(a) The Cableships shall be used primarily for the Repair of all the
Scheduled Cables when the Cableships Standing Charges are borne by
the Parties under this the Agreement.
(b) Subject to such requirements being satisfied, the Cableships shall
be used for the Maintenance & Improvement of the Scheduled Cables
on an interruptible basis during the periods when the Cableship is
assigned to the Agreement. The relevant Maintenance Authority
shall provide the Management Committee with details of the nature,
duration and location of the proposed Maintenance & Improvement
Work. Such a work shall require the prior agreement of the
Management Committee. The decision of the Management Committee
shall be given to the relevant Maintenance Authority within 10
days. Upon receipt of a request from a Maintenance Authority for
the repair of a Scheduled Cable, the relevant Cableship Operator
shall immediately terminate such Maintenance & Improvement Work.
(c) The Cableship Operators shall agree amongst themselves a Cableship
Programme in accordance with Article 5 (b). Within the last month
of each financial year, the Cableship Operators shall submit a
Cableship Programme for the coming financial year to the
Management Committee for approval. For subsequent modifications of
the Cableship Programme required during the course of the
financial year, the Cableship Operators shall seek the prior
agreement of the Management Committee. The decision of the
Management Committee shall be given to the Cableship Operators
within 10 days. Provided that the requirements as set forth in
Article 5(b) are met, the approval of a Cableship Programme
amendment by the Management Committee shall not be unreasonably
withheld.
(d) The Cableship Operators shall have the opportunity to perform
Outside Works when the Cableship is assigned to the Agreement.
Such a non-interruptible work shall require the prior agreement of
the Management Committee. The decision of the Management Committee
shall be given to the relevant Cableship Operator within 10 days.
(e) The Cableship Operators shall have the opportunity to perform crew
training on an interruptible basis when the Cableship is assigned
to the Agreement. The relevant Cableship Operator shall provide
the Management Committee with details of the nature, duration and
location of the proposed crew training. Such a work shall require
the prior agreement of the Management Committee. The decision of
the Management Committee shall be given to the relevant Cableship
Operator within 10 days. Upon receipt of a request from a
Maintenance Authority for the repair of a Scheduled Cable, the
relevant Cableship Operator shall immediately terminate such crew
training.
(f) Each Cableship shall schedule within the Cableship Programme, a
period of Refit in each Financial Year pro rata to the
Availability of its Cableship in that Financial Year at the rate
of 30 refit days per 335 Available Cableship Days. The Cableship
Operator shall use the refit period so shown actually and solely
for refit purposes and not for any other purpose within or outside
the Agreement.
Any Running Costs incurred during a period of refit, commencing
from the date of release of the Cableship from Availability as
approved by the Management Committee and continuing until the date
of written notification by the relevant Cableship Operator to the
Management Committee that the Cableship is again Available for
work on Scheduled Cables, shall be borne by the relevant Cableship
Operator.
Standing Charges for periods when a Cableship is undergoing Refit
shall be borne in accordance with the provisions of Article 19f
(g) Subject to the approval of the Management Committee, and for such
a period as the Management Committee shall approve, a Cableship
Operator may nominate another suitable ship operated by the
relevant Cableship Operator of this Agreement as an alternative to
its Cableship. Any such alternative Cableship shall comply with
the basic Cableship technical criteria as defined in Schedule H.
The Standing Charges and Running Costs of the alternative
Cableship shall be the effective costs but in no case shall exceed
those of the replaced Cableship.
(h) The operational conditions of intervention of a Cableship, during
her period of assignment under this Agreement, for the repair and
the maintenance on a non- Scheduled Cable within the Operational
Zone shall require the prior agreement of the Management
Committee.
(i) The Management Committee shall have the right, in case of gross
breach of contract of a Cableship Operator, to suspend the
activity under this agreement until such Cableship Operator has
demonstrated to the Management Committee its ability to remedy
such failure within a reasonable period of time after receipt of
notice from the Management Committee specifying such failure.
7. MAINTENANCE FACILITIES ON BOARD CABLESHIPS
(a) In order to be capable of fulfilling its obligations under this
Agreement, each Cableship Operator shall ensure that its Cableship
is provided with submarine telecommunications cable maintenance
equipment and fully-experienced personnel as specified in Schedule
H, such that the Cableship is able to carry out Repairs and
Maintenance & Improvement on all the Standard Scheduled cables.
(b) For Specific Scheduled Cables, it shall be the responsibility of
the relevant Maintenance Authority to provide to the Cableship
Operators, in a timely manner, any specialised equipment,
expertise, training or qualification instructions which are not
included in the Standard Practices and which are necessary for the
Repair or Maintenance & Improvement of such Specific Scheduled
Cable. Except as is provided in Article 18, all costs arising from
the provision of such specialised equipment , expertise, training
or qualification instructions to the Cableship Operator shall be
borne by the relevant Maintenance Authority and shall not be
charged to this Agreement.
(c) An interim period until the total consumption of the Alcatel
jointing boxes owned by the Maintenance Authorities may be defined
by the Management Committee before removing the Alcatel jointing
technology presently available on board the C/S R CROZE and C/S
TENEO.
(d) The relevant Maintenance Authority shall be responsible for
ensuring, in a timely manner, that the Cableship Operators are
provided with cable systems documentation (and any specialised
equipment and expertise additional to that specified in Schedule
H) which is necessary for the Repair or Maintenance & improvement
of Scheduled Cables. The Cableship Operators shall exercise due
diligence in the safekeeping on board the Cableship of any
documentation, plant and equipment provided by a Maintenance
Authority pursuant to this Article.
(e) The relevant Maintenance Authority shall be responsible for the
timely provision of spare submersible plant for each of the
Scheduled Cables and for determining its required allocation
between shore depots and Cableships.
8. USE AND OPERATION OF THE DEPOT(S)
Each Maintenance Authority shall be responsible for ensuring that elected
depots or locations are fitted with the suitable technical and
operational requirements as defined in Schedule D5, in order to enable
the normal operation of the Cableships required by this Agreement when
transferring the Spare Submersible Plant to and from them.
9. USE OF SPARE SUBMERSIBLE PLANT
In order that Repair and Maintenance & Improvement to the Scheduled
Cables are carried out with the minimum of delay, or when a Cableship is
assigned to an Eastern Port, any of the Spare Submersible Plant stored
either onboard a Cableship or in a Depot or both may be used with prior
mutual agreement between the Maintenance Authority responsible for the
said Spare Submersible Plant and the Maintenance Authority responsible
for carrying out the Repair or Maintenance & Improvement provided always
that such Submersible Plant is considered by the Maintenance Authorities
concerned to be technically compatible with the Scheduled Cable to be
repaired or maintained. Upon completion of the repair, the Cableship
Operator shall promptly inform the Maintenance Authority concerned of the
type and quantity of Spare Submersible Plant used and the Maintenance
Authorities involved shall thereupon determine amongst themselves the
consequential financial adjustments or replacement arrangements.
10. TRANSFER OF SPARE SUBMERSIBLE PLANT
A Maintenance Authority shall be entitled, as a Maintenance & Improvement
work on an interruptible basis, to require that its Spare Submersible
Plant be transferred within the MECMA Operational Zone to or from a
Cableship or depot.
11. NOTIFICATION OF CABLESHIP REQUIREMENT
(a) A Maintenance Authority requiring a Cableship to carry out a
Repair shall notify the Cableship Operator concerned. The
Maintenance Authority concerned shall also copy such notification
by fax to Management Committee. The relevant Cableship Operator
shall confirm receipt of such notification in accordance with
Article 21.
(b) When the Cableship Operator receives notification from a
Maintenance Authority that the services Of the Cableship are
required to undertake Repair or Maintenance & Improvement on any
of the Scheduled Cables, the Cableship Operator shall make
arrangements for the despatch of the Cableship to the required
place of operation without undue delay, typically within 24 hours,
subject to Article 5d and Schedule J.
(c) Repair and Maintenance & Improvement of the Scheduled Cables shall
normally be carried out by the requested Cableships. However, if
at that time the relevant Cableship has already been assigned to
another Repair or a Maintenance & Improvement operation, the
concerned Maintenance Authority shall request a second Cableship
to attend to the fault. If at that time the second selected
Cableship has already been assigned to another Repair or
Maintenance & Improvement operation, the concerned Maintenance
Authority shall request a third Cableship to attend to the fault.
In the event of the unavailability of the last Available Cableship
or of a conflict on the assignment of the Cableships or on the
sequence of the Repair and Maintenance & Improvement operations,
the following shall apply:
(i) The Maintenance Authorities concerned and the Cableship
Operators shall consult with one another with a view to
agreeing which Cableship should be assigned to which
operation and the sequence of the operations.
(ii) If no agreement is reached, Repairs shall be carried out
first on the Scheduled Cable with the higher aggregated
number of Units of Repartition in Schedule B. When the
Scheduled Cable concerned forms part of a multiple segment
cable system, the number of UR to be considered for the
purpose of Article II (c) (ii) shall be the sum of the UR
for all Scheduled Cables that constitute such
multiple-segment cable system and whose traffic carrying
capacities are adversely affected by the failure
necessitating the repair
(iii) Notwithstanding the provisions of Articles 11.c.(i) and
(ii) above, if the chosen Cableship has left her Assigned
Port to carry out a Repair on a Scheduled Cable, such
Repair should be completed before assigning the Cableship
to another Operation.
(d) For the purposes of notification, each Cableship Operator shall
appoint a representative to whom notification should be sent, as
given in Schedule I.
(e) At the request of the Management Committee, in order to comply
with the Maintenance Authorities requirements, the Cableship
Operators may also appoint a representative to whom notification
should be sent. This representative will liaise with the other
Cableship Operators without undue delay to define which Cableship
will carry out the repair.
12. PLANNING AND DIRECTION
(a) The Maintenance Authority requiring any repair or maintenance work
to be carried out may elect to be responsible for planning and
directing the Repair or Maintenance & Improvement operation which
shall be performed by the personnel of the Cableship under the
control and supervision of the Engineer in Charge of the Cableship
in accordance with the Cableship Operator's "Cable Working
Procedures" or "Standing Instructions" as may be amended from time
to time by the Cableship Operator. If the Maintenance Authority
does not so elect to be responsible then the Cableship Operator
shall be responsible for the planning and direction of the Repair
and Maintenance operation. In all cases the Maintenance Authority
shall make available to the Cableship Operator the necessary
technical information required for Repair and Maintenance to be
carried out to the appropriate Scheduled Cable.
The Cableship Operator shall always be responsible for the
planning, direction and performance of the repair unless the
relevant Maintenance Authority declares otherwise. In this case, a
format will be signed between the Maintenance Authority and the
Cableship Operator.
(b) The Cableship Operators hereby agree that any Maintenance
Authority who elects to be responsible for planning and directing
any particular Repair or Maintenance & Improvement operation or
for purposes of observing the operation shall have the right to
have representatives onboard the Cableship during the relevant
cable operations. The number of representatives shall be subject
to accommodation availability, but shall be at least one.
(c) The Cableship Operator shall provide any representative of the
Maintenance Authority with the following facilities aboard the
Cableship:
- accommodation of standard not less than given to officers
on board and preferably with single occupancy
- full victualing and linen supply whilst on board
- access to the normal communication facilities of the
Cableship, as required
- access to any part of the vessel which the Maintenance
Authority `s representative may reasonably deem it
necessary for the purpose of representing the Maintenance
Authority
- access to suitable office accommodation and services
- access to the Cableship Operator's operational meetings
and/or briefings.
(d) The Maintenance Authorities shall appoint one of the authorised
representatives, should more than one be carried, as a "Senior
Representative". The- Senior Representative shall be responsible
for planning and directing the Repair or Maintenance & Improvement
operation, pursuant to Article 12(a) above.
(e) Permission to board the Cableship by any such representative shall
be subject to the acceptance by the representative of the
Maintenance Authority of the Cableship Operator's waiver of
liability requirements set forth in Article 22.
(f) Notwithstanding Articles 12(a), (b) and (c) above, the decision of
the Commander shall be final in carrying out or not carrying out
any directions or plans issued by the Senior Representative if the
Commander considers that the carrying out of such instructions
would endanger the Cableship or the lives or safety of any person
thereof.
13. CABLESHIPS BASE PORT
(a) At the inception of this Agreement, the Cableships shall be based,
while on standby for Repair and Maintenance & Improvement, at the
Base Ports designated in Article 5(a). In order to reduce the
duration of Repair operations and the associated costs, a minimum
of basic facilities such as spares storage area, berthing for any
Cableship, 24 hours access, 365 days per year must be provided.
(b) Should the Management Committee require at some stage during the
term of this Agreement a Cableship Base Port to be changed
temporarily to an Assigned Port, in order to provide more
efficient maintenance coverage of the Scheduled Cables, then the
Cableship Operator shall implement the necessary change subject to
the prior agreement of the Cableship Operator(s) involved, which
agreement shall not be unreasonably withheld, and subject to
Article 16(a).
(c) Any costs incurred as a result of the necessary change of the Base
Port shall be borne by the Maintenance Authorities and allocated
to the Maintenance Authorities in proportion to each Scheduled
Cable's allocated number of Units in accordance with Schedule B.
14. CLEARANCES
(a) When a Cableship is requested to undertake any operation under the
terms of this Agreement, the relevant Cableship Operator shall be
fully responsible for obtaining the necessary authorisations to
carry out the work.
(b) The relevant Maintenance & Improvement Authority shall provide all
reasonable support, as requested by the Cableship Operators, in
the obtaining of the necessary authorisations and consents.
(c) The Cableship Operator shall inform the relevant Maintenance
Authorities if the necessary authorisations and consents have not
been received after two working days from the date of making the
application to the relevant marine authority.
(d) In the event of clearances being delayed or refused due to reasons
beyond the control of the Cableship Operator, as defined in
Article 25, the Cableship Operator shall not incur any liability
to any other Party.
15. PERIODS OF CABLESHIP UNAVAILABILITY
(a) A Scheduled Cableship will be considered temporarily unavailable
for Repair and Maintenance & Improvement of the Scheduled Cables
in the following circumstances:
(i) when the Cableship undergoes periodic refits, or.
(ii) when the Cableship undergoes any modification or alteration
agreed by the Management Committee, or
(iii) From the starting date of any Outside Work undertaken in
accordance with Article 6(d), until its conclusion;
(iv) if at any time the Cableship for reasons other than as
stated above or for reasons of Force Majeure as defined in
Article 25 becomes unavailable other than a total loss or
constructive total loss.
Upon the occurrence of any of the above events, the appropriate
Cableship Operator shall notify the Chairman of the Management
Committee promptly and in writing of the expected period of
unavailability of that Cableship.
(b) If a Cableship becomes a total loss or a constructive total loss,
the Cableship Operator shall notify the Chairman of the Management
Committee and, if required by the Management Committee, use
reasonable endeavours to provide a substitute Cableship subject to
terms and conditions to be proposed by the Cableship Operator, and
agreed to by the Management Committee.
(c) If a Cableship is damaged to such an extent that require repairs,
the Maintenance Authorities shall bear its Fixed Standing Charges
up to a maximum period of 90 (ninety) days from the beginning of
such repairs.
16. PREROGATIVES OF THE COMMANDER
(a) The Cableships shall not be obliged to proceed to, nor remain at,
or enter any port or place which is, or which is considered by the
Commander or the Cableship Operator in his or its discretion to be
dangerous by reason of fever, epidemics, ice, blockade, war,
hostilities, warlike operations, civil war, civil commotions,
revolutions, operation of law or any other reason considered by
the Commander or the Cableship Operator in his or its discretion
to be dangerous, or to which the Cableships are prohibited from
going by the government of the nation under whose flag the
Cableship sails, or by any other government. In the event that a
Cableship is ordered to such a port or place, the Cableship
Operator shall seek instructions from the Maintenance Authorities
as to an alternative port or place. The Cableship Operator shall
also be entitled to charge any expenses incurred in proceeding
thereto as a Running Cost to the Maintenance Authority concerned
in accordance with Article 19.
(b) The Cableships shall not be obliged to force ice. If on account of
ice the Commander considers it dangerous to remain at a port or
place for fear of the Cableship being frozen in and/or damaged, he
has liberty to sail to a convenient open place and wait new
instructions.
(c) The Commander shall have liberty to comply with any orders or
directions as to departure, arrival, routes, port of call,
stoppages, destination, delivery or otherwise, howsoever given, by
the government of the nation under whose flag the Cableship sails
or any department thereof, or by any other government or any
department thereof, or any person acting or purporting to act with
the authority of any such government or any department thereof or
by any committee or person having, under the terms of the war risk
insurance on the Cableship, the right to give such orders or
directions and if by reason of and in compliance with any such
orders or directions anything is done or is not done, the same
shall not be deemed a deviation, and performance in accordance
with such orders or directions shall be a fulfilment of this
Agreement.
(d) The Cableship Operator agrees where possible to use its reasonable
endeavours to ensure that the duration of any deviation or
detention under Articles 25 (a) and (b) are kept to a minimum. The
costs of such deviations or detentions shall be charged as Running
Costs to the relevant Maintenance Authority in accordance with
Article 19.
17. DISTRESS AND SALVAGE
At all times during the terms of this Agreement the Cableships shall have
liberty to sail with or without pilots, to tow or be towed, deviate to
assist vessels in distress or to deviate for the purpose of saving life
or property, to take aboard craft and land refugees, to secure medical
attention for any person onboard suffering from accident or illness, to
deviate for reason of bad weather, to call at any ports for fuel or other
supplies, or for any other valid or customary cause. The Management
Committee shall be advised as soon as possible of any of these causes.
18. INCLUSION AND DELETION OF ADDITIONAL PARTIES AND SCHEDULED CABLES
(a) Where any maintenance authority assumes the maintenance
responsibility for any cable system, or Part thereof within the
Operational Zone, and if that maintenance authority is not a Party
to this Agreement then that maintenance authority may, with the
prior written agreement of the Management Committee, such
agreement not being unreasonably withheld or delayed, and in
recognition of the mutual benefits to be obtained, be entered as a
Maintenance Authority under this Agreement for the balance of the
term of the Agreement by means of a Document of Accession, as set
forth in Schedule E, and hence upon the coming into force of such
document shall be entered into Schedule Al.
(b) Subject to the prior agreement of the Management Committee, which
agreement shall not be unreasonably withheld or delayed, when a
Maintenance Authority, being a Party to this Agreement, assumes
responsibility for any cable system, or part thereof within the
Operational Zone which is not a Scheduled Cable, as given in
Schedule H 4, and if that Maintenance Authority wishes such cable
system, or part thereof, to become a Scheduled Cable, then it
shall be entered into Schedule
B1. Other appropriate Schedules shall be amended accordingly. No
cable shall be permitted to be brought into this Agreement as a
Scheduled Cable unless, at the date of its intended entry into
this Agreement, it is reasonably demonstrated to the Management
Committee that such cable is free of any fault in its submerged
plant that would affect its availability to carry
telecommunications traffic.
(c) The Parties agree that where a cable is brought into this
Agreement as a Scheduled Cable and such Scheduled Cable has, at
the date of its entry into the Agreement, already been qualified
for jointing by means of UJ or QUJ technology, the Cableship
Operators shall implement the necessary additional jointing
training and/or tooling required by the crew of the Cableship to
permit that Cableship to carry out a Repair to such Scheduled
Cable. The cost of such additional jointing training and/or
tooling required shall be borne by the Maintenance Authorities in
proportion to the UR allocated to them in Schedule B. The
provisions of this Article shall also apply to a Scheduled Cable
which becomes qualified for jointing by means of existing UJ or
UQJ technology during the term of this Agreement.
(d) A cable shall be permitted to be brought into this Agreement as a
Scheduled Cable prior to its RFS date but after the completion of
its laying operation. However, any Repair to such Scheduled Cable
which is carried out prior to its RFS date shall be carried out on
an interruptible basis. The Standing charges applicable to such
Scheduled cable shall be calculated and billed to the relevant
Maintenance Authority on a pro rata daily basis from the period of
its date of introduction into this Agreement until the RFS date of
such Scheduled Cable. Following the RFS date, of such Scheduled
Cable, the normal procedures for the calculation and billing of
the Standing Charges shall apply. During this period of early
introduction, between the completion of its laying operation up to
the RFS date, the MECMA cost Allocation Formula as defined in
Schedule B will apply with k or s equal 0.
(e) A Scheduled Cable may be removed from this Agreement in the event
of that cable being taken out of service.
(f) For the duration of this Agreement, a Maintenance Authority shall
have the right to early withdraw a Scheduled Cable from the
Agreement provided always that:
(i) it shall give at least one year prior written notice of
such withdrawal to the other Parties hereto and that
(ii) the effective date of withdrawal of such Scheduled Cable
shall not occur before five years from the introduction of
such Scheduled Cable in this
Agreement except if the withdrawal is the result of the occurrence
of Article 18 (e) above.
(g) In the case of Article 18 (a), agreement shall be obtained from
the Parties as follows:
(i) Notification to the Parties of the proposed change in
writing or by fax.
(ii) Upon the expiry of thirty (30) days from the date of such
notification and, except in the event of any Maintenance
Authority advising any objections in writing or by fax
during such notice period, the relevant Schedules shall be
amended and a Document of Accession shall be executed as
set forth in Schedule E. All revised Schedules and, where
appropriate, certified copies of the Document of Accession
shall be distributed to each of the Parties.
(iii) In the event that a Maintenance Authority objects in
accordance with Article 18 (g)(ii) above, the Management
Committee shall decide what action should be taken
according to Article 4.
(h) In the case of Article 18 (b), agreement shall be obtained from
the Parties as follows:
(i) Notification to the Parties of a request for inclusion in
writing or by fax.
(ii) Upon the expiry of thirty (30) days from the date of such
notification and, except in the event of any Maintenance
Authority advising any objection in writing or by fax
during such period the relevant Schedules shall be amended.
All revised Schedules shall be distributed to each of the
Parties.
(iii) In the event that a Party objects in accordance with
Article 18 (h)(ii) above, the Management Committee shall
decide which action should be taken according to Article 4.
(i) The Management Committee shall be responsible for administering
the implementation of this Article on behalf of the Parties.
19. BASIS OF CABLESHIPIS COST ALLOCATION
(a) The respective costs of each Scheduled Cableship shall comprise:
- Standing Charges as defined in Schedule C1.
- Running Costs as defined in Schedule C2.
The Standing Charges for the whole duration of the Agreement shall
be as shown below for each Cableship in this Agreement.
The Standing Charges for the first three Financial Years of this
Agreement are fixed and are not subject to any increase
(1999/00/01).
***
(*) CS Certamen is to be considered as an Alternate Cableship to CS Teliri
(b) At the end of the first Financial Year of this Agreement (1999),
each Cableship Operator shall advise the Maintenance Authorities
of its Cableship's Fixed Standing Charges for the fourth Financial
Year of the Agreement (2002). At the end of the second and each
subsequent Financial Year thereafter, each CableshipOperator shall
advise the Maintenance Authorities of its Cableship's Fixed
Standing Charges for the next unpriced Financial Year forward, and
this method of Cableship pricing shall be maintained throughout
the term of the Agreement.
(c) For the 4th and subsequent Financial Year, if a Cableship Operator
requires an increase of the annual Standing Charges, then the
Cableship Operator shall submit details of such increase for the
consideration of the Management Committee.
(d) The Fixed Standing Charges of Scheduled Cableships shall be
converted in French Francs using the standard exchange rate dated
September I st of the year before the Financial Year concerned as
given in the Newspaper `LES ECHOS' published in Paris. The figures
in French Francs are used for the evaluation of the Network Fixed
Standing Charges given in Article 19 (e).
(e) The Management Committee shall determine the Network Fixed
Standing Charges at the beginning of each Financial Year. For each
Cableship, periods in the Agreement as anticipated in the
Cableship Schedule shall be taken into account on a daily basis by
dividing the annual Fixed Standing Charges of the Cableship by
335.
The Network Fixed Standing Charges for the first three Financial Years of this
Agreement shall be as follows: (Figures given in French Francs)
***
(*) Cs Certamen is to be considered as an Alternate Cableship to CS Teliri
(**) The Network Fixed Standing Charges excludes CBP function and Eastern Port
additional costs.
These Network Fixed Standing Charges are based upon the exchange rate
applicable at the date of the signature of this agreement and shall be
revised by the CBP according to the evolution of such exchange rates.
(f) For each Scheduled Cableship, bills to be paid to Cableship
Operators shall be prorated amount of such Cableship Fixed
Standing Charges due for the coming quarter based on the Cableship
Programme. Such figure shall be abated or adjusted as appropriate
by any sums due to or already paid to the Cableship Operator
during the previous quarter in respect of:
(i) the Cableship Fixed Standing Charges for periods when the
Cableship Programme was modified in accordance with Article
6 (c);
(ii) the Cableship Fixed Standing Charges for periods of any
Outside Work performed in accordance with Article 6 (d);
(iii) the Cableship Fixed Standing Charges for periods in excess
of 90 days when a Cableship is unavailable in accordance
with Article 15(c);
(iv) the Cableships Fixed Standing Charges for periods when the
Cableship(s) undergo(es) Refit.
(g) Cableship Fixed Standing Charges applicable to periods of time
shall be determined on a daily basis by dividing the annual Fixed
Standing Charges of the Cableship by a figure of 335.
(h) The quarterly Standing Charges invoiced to the Maintenance
Authorities shall be based on a yearly estimated UR cost. Not
later than twenty days before the start of each financial year,
the Management Committee shall agree on the estimated UR cost
determined by adding the annual Network Fixed Standing Charges in
accordance with Article 19(e) and by dividing this total amount by
the total estimated number of Units of Repartition in the network.
The quarterly Standing
Charges billed to each Scheduled Cable shall be calculated by
multiplying the relevant Units of Repartition by the estimated UR
cost.
(i) For the whole duration of the Agreement, the UR cost shall in no
case exceed *** and will decrease year by year.
(j) As soon as possible after the end of each Financial Year, the
Management Committee shall approve a final UR cost based on the
total Fixed Standing Charges, adjusted as appropriate to reflect
any Outside Work undertaken in accordance with Article 6 (d), and
the actual number of Units of Repartition according to Schedule B2
for a given Financial Year. A yearly financial adjustment shall be
made to take into account appropriate adjustment based on the
final UR cost.
(k) The Running Costs of a Cableship incurred during the period when
such Cableship is engaged in any Repair or Maintenance &
Improvement work on a Scheduled Cable, including passage time,
shall be allocated entirely to the Scheduled Cable involved.
(l) In the event of any Cableship being engaged in multiple work
operations, the Running Costs for the passage time before such
work starts on the first operation, the time spent in passage
between the end of each completed operation, and the start of the
next operation, and the time spent in passage from the end of the
last operation in the series of operations to the arrival of the
Cableship at its Assigned port, shall be aggregated and shared to
the operations in proportion to the distance of each operation
from the Cableship's Assigned Port.
(m) The Running Costs of the Cableship for the entire periods when
engaged in Outside Work shall be borne wholly by such Outside
Work.
(n) The Fixed Standing Charges of the Cableship for the entire periods
when not assigned to this Agreement shall be borne wholly by the
Cableship Operator involved.
(o) The Running Costs of a Cableship for the duration of any period
when engaged in crew training in accordance with Article 6 (e)
shall be borne wholly by the relevant Cableship Operator.
(p) The Running Costs identified in Article 5 (d) (ii) in respect of
the provision of additional facilities shall be allocated on the
basis identified in Schedule I amongst the Scheduled Cables having
been agreed as requiring the availability of such additional
facilities.
(q) The Cableship Operators agree that if one Cableship is engaged in
refit and in such circumstances the Cableship is reasonably deemed
by the Management Committee to be urgently required due to an
emergency requirement involving coincident faults then the
Cableship Operator will disengage the required Cableship from
refit as soon as considered possible. Nothing in this Article
shall be construed as requiring a Cableship Operator to operate a
Cableship out of classification in any respect or if in the
Commander's sole discretion the safety of the Cableship and its
personnel might be jeopardised by such operation. The costs
associated with disengaging the Cableship from the refit shall be
included as Running Costs for that Cableship and allocated to the
Scheduled Cables in accordance with Article 19(h).
20. BILLING, ACCOUNTING AND PAYMENT ARRANGEMENTS
(a) The billing, accounting and payment arrangements function shall be
centralised and carried out by a Central Billing Party,
hereinafter referred to as MECMA Central Billing Party, appointed
by the Management Committee.
(b) The Cableship Operators' bills shall be supplied to the MECMA
Central Billing Party which shall render invoices to the
Maintenance Authorities.
(c) Each Cableship Operator shall submit quarterly bills to the MECMA
Central Billing Party on or before the 1st working day of the
month preceding the quarter to which they relate.
(d) The Cableship Operators' bills shall give details of Cableship
Fixed Standing Charges (including retrospective adjustment) and
Running Costs. Retrospective adjustments to the amounts billed in
accordance with Article 19 (g) shall be included and settled as a
part of the next billing submission to the MECMA Central Billing
Party.
(e) The Cableship Operator shall issue their bills in their local
currency and such bills shall be payable in their own currency on
the 7th working day of the third month of the quarter to which
they relate.
(f) In the event that a payment is delayed to a Cableship Operator,
except delay due to late payments from the Maintenance Authorities
as defined in Article 20 (m), extended payment charges shall be
calculated by the MECMA Central Billing Party and paid to the
Cableship Operator. Extended payment charges shall be computed on
a simple interest basis at a rate equal to one hundred and twenty
five percent (125%) of the monthly arithmetic mean of the PlBOR
for thirty day loans. Such extended payment charges shall be borne
by all Maintenance Authorities in proportion to their Units of
Repartition as per Schedule B2, unless such late
payment is due to the actions or omissions of the Central Billing
Party in which latter event the extended payment charges shall be
to the account of the Central Billing Party.
(g) The party responsible for the MECMA Central Billing Party function
shall charge the cost associated with the performance of the
Central Billing function. These charges shall be allocated
according to Scheule B2.
(h) Quarterly invoices shall be rendered to the Maintenance
Authorities by the MECMA Central Billing on the 15th working day
of the month prior to the quarter in which they apply. Such
invoices shall be based on information received by the MECMA
Central Billing Party and shall include:
- The quarterly Standing Charges based on the estimated UR
cost in accordance with Article 19 (h),
- Running Costs as defined in Article 19,
- Transfer costs as defined in Article 10,
The invoices shall be supported with the appropriate documentation
including copies of the Cableship Operator's bills and the
Schedules B1 and B2 effective at the time of the billing.
(i) As soon as possible after the end of the Financial Year, a yearly
financial adjustment billing shall be to the Maintenance
Authorities by the MECMA Central Billing Party. The yearly
financial billing shall includes the adjustment of Standing
Charges and some additional costs billed yearly, as follows:
- Adjustment of the annual Standing Charges cost taking into
account the final UR cost as per Article 19(j);
- Adjustment covering variances due to exchange rate
fluctuation between the rate used for the billing and the
rate in force on the date of the payment;
- Financial charges in accordance with Article 20 (f) and
Article 20 (m);
- The cost of the performance of the Central Billing Party
function.
(j) Invoices rendered to the Maintenance Authorities shall be issued
in French Francs at the exchange rate effective at the date of the
billing and shall be payable in that currency. Such invoices shall
be payable on the last working day of the second month of the
quarter to which they relate.
(k) The MECMA Central Billing Party shall provide the relevant
Maintenance Authorities by fax, or a like means of communication,
with advice of the date of despatch of all invoices being
submitted under this Agreement.
(l) Schedule B1 identifies the Maintenance Authorities responsible and
individually liable for the payment of any amounts due under this
Agreement in respect of each Scheduled Cable.
(m) In the event that a payment is delayed by a Maintenance Authority,
invoices not paid when due shall accrue late payment charges from
the due date until the day on which it is paid. The late payment
charges shall be calculated by the MECMA Central Billing Party and
shall be charged to the defaulting Party. Late payment charges
shall be computed on a simple interest basis at a rate equal to
one hundred and twenty five percent (125%) of the monthly
arithmetic mean of the PIBOR for thirty day loans.
(n) if an invoice for a Scheduled Cable remains unpaid for 180 days
after the due date, the MECMA Central Billing Party shall advise
the Management Commiftbe and invoice to the other Maintenance
Authorities a proportional share of the unpaid invoice, including
a proportional share of the interest incurred. The amounts
invoiced to such Maintenance Authorities shall be in proportion to
their number of Units of Repartition. The said amounts paid to the
MECMA Central Billing Party shall be transferred to the
Cableship(s) Operator(s) in payment of their outstanding bills.
(o) Nothing contained in this Article shall release the defaulting
Maintenance Authority from its obligations under this Agreement.
The defaulting Maintenance Authority will continue to be billed
its share of all Costs in accordance with Articles 20 (h) and (i).
If the defaulting Maintenance Authority fails to pay any invoice
within 365 days of its due date, its Scheduled Cables will be
automatically excluded from the Schedules B. At such time, revised
schedules, which will exclude the Schedule Cables and the
associated Maintenance Authorities, shall be issued. The
defaulting Maintenance Authorities will continue to be excluded
from Schedules B until all outstanding invoices, including
applicable interest as specified in Article 20 (m), have been paid
in full.
(p) In the event that a Maintenance Authority for a Scheduled Cable
has failed to pay a xxxx within 180 days of the due date, and that
Scheduled Cable has more than one Maintenance Authority, the
Central Billing Party shall notify such other Maintenance
Authority(ies) for that cable of such defaults for non-payment.
Notwithstanding Article 20 (n) and (o), a Maintenance Authority
for a Scheduled Cable having more than one Maintenance Authority
shall have the option, at any
time within 365 days of the due date of a xxxx, to pay any unpaid
xxxx including any applicable interest of another Maintenance
Authority for that cable, and upon such payment, the defaulting
Maintenance Authority shall no longer be deemed to be in default
for non-payment of such invoice and the cable involved shall not
be excluded from the Schedules B.
In such case, the Maintenance Authority which accepts the option to pay any
unpaid xxxx of another defaulting Maintenance Authority for a specific system,
is entitled to exercise the right of vote instead of the defaulting Maintenance
Authority for such system inside the Management Committee.
(q) Upon receipt by the MECMA Central Billing Party from thek
defaulting Maintenance Authority or from another Maintenance
Authority for a Scheduled Cable having more than one Maintenance
Authority of any amount paid by the other Maintenance
Authority(ies) in accordance with Article 20 (n), any such amounts
shall be distributed to the other Maintenance Authorities in the
same proportions as those Maintenance Authorities paid to the
MECMA Central Billing Party under Article 20 (n).
(r) Recognising that some Maintenance Authorities within various
Construction & Maintenance Agreements have appointed a central
billing party in respect of their Scheduled Cables, the MECMA
Central Billing Party shall forward the original invoice to that
central billing party for payment. Information copies of invoice
shall be forwarded at the same time to all the relevant
Maintenance Authorities. The central billing parties appropriate
to Scheduled Cables under this Agreement are indicated in Appendix
3 of the pro-forma document of accession.
(s) Notwithstanding Article 20 (r) the respective Maintenance
Authorities shall remain responsible and Individually liable for
all payments due by them under this Agreement and as indicated in
Schedule B1.
21. RESPONSIBILITIES FOR THE SHIPS SCHEDULES AND REPORTS
(a) Not later than two months before the start of each Financial Year,
each Cableshp Operator shall provide the Management Committee with
an estimate of Running Costs for its Cableship, in accordance with
the format set out in Schedule C3.
(b) When a Cableship is notified to commence an Operation or when a
Cableship changes operational status, the Cableship Operator shall
notify the Management Committee by facsimile as specified below.
- Upon receipt by a Cableship Operator of written notice that
its Cableship is required to carry out a repair in
accordance with Article 11, the Cableship
operator shall, within 24 hours, transmit to the Management
Committee a notification of commencement of Cableship
Operation,
- For the duration of the repair, the relevant Cableship
Operator shall provide the relevant Maintenance Authority
and relevant terminal parties with daily progress reports
including a log of the day's events, an indication of the
estimated number of hours remaining until the completion of
the final splice, an indication of the times when the
Cableship is likely to require co-operation from the
relevant terminal parties, information on the nature of the
fault, any possible delays and any equipment and procedural
problems encountered
(c) Upon completion of such Operation, the Cableship Operator shall;
within 24 hours, transmit to the Management Committee a
notification of completion of a Cableship Operation.
(d) Upon a Cableship's change in operational status e.g. Standby,
Repair, Maintenance & Improvement, Refit, Crew Training and
Outside Work, the Cableship Operator shall transmit to the
Management Committee a notification of the change in status.
(e) Within one month after the completion of a Repair, the relevant
Cableship Operator shall provide to the relevant Maintenance
Authority a detailed repair report including the repair synopsis
in English language
(f) Cableship reporting arrangements for Maintenance & Improvement or
other work of an interruptible nature shall be agreed between the
relevant Cableship Operator and the relevant Maintenance Authority
responsible for such work
(g) The Cableships Operators shall as appropriate keep such records,
vouchers, accounts, or reproduction thereof in whatever form of
all costs incurred in connection with the Cableship Running Costs,
to support their billing of such costs to and amongst the
Maintenance Authorities for a period of not less than six years
from the date such costs were incurred and shall make such
records, vouchers, and accounts available at all reasonable times
for inspection by the Maintenance Authorities.
(h) The Cableship Operators shall keep Repair and Maintenance &
Improvement records relating to Scheduled Cables for a period of
not less than six years from the date of issue of such records and
the Maintenance Authorities shall have the right to obtain copies
of such records upon request.
22. LIABILITY AND INDEMNITY
(a) Notwithstanding anything else contained in this Agreement, the
Maintenance Authorities shall not be responsible for loss of or
damage to the property of the Cableship Operators or of their
Contractors and sub-Contractors, including the Cableships, or for
personal injury or death of the employees of the Cableship
Operators or the loss of or damage to the property of the same
arising out of or in any way connected with the performance of
this Agreement, except if such loss, damage injury or death is
caused by the wilful act or negligence of the Maintenance
Authorities, their employees or Contractors. The Cableship
Operators shall indemnify, protect, defend, hold harmless and
waive all rights of recourse against the Maintenance Authorities
from any and against all claims, costs, expenses, actions,
proceedings, suits, demands and liabilities whatsoever arising out
of or in connection with such loss, damage, personal injury or
death.
(b) Notwithstanding anything else contained in this Agreement, the
Cableship Operators shall not be responsible for loss of or damage
to, or any liability arising out of any cable carried by the
Cableships, the Property of the Maintenance Authorities (including
the Scheduled Cables) or of their employees or Contractors (other
than the Cableship Operators) or of anyone on board the Cableship
or present in the Depot at the behest of the Maintenance
Authorities, arising out of or in any way connected with the
performance of this Agreement, except if such loss or damage is
caused by the wilful act or negligence of the Cableships
Operators. The Cableship Operators shall not be responsible for
injury or death unless it is proved that such injury or death is
caused by wilful act or negligence of the Cableship operators,
their employees or Contractors. The Maintenance Authorities shall
indemnify, protect, defend hold harmless and waive all rights of
recourse against the Cableship Operators from any and against all
claims, costs, expenses, actions, proceedings, suits, demands and
liabilities whatsoever arising out of or in connection with such
loss, damage, personal injury or death.
(c) Neither the Cableships Operators nor the Maintenance Authorities
shall be liable to each other for any indirect or consequential
damages or expenses whatsoever arising out of or in connection
with the performance of this Agreement, including but not limited
to, loss of use, loss of profit or revenue or any loss of business
opportunity and cost of insurance.
(d) When the Cableship Operators or the Maintenance Authorities may
seek an indemnity under the provisions of this Agreement or
against each other in respect of a claim brought by a third party,
the Maintenance Authorities shall seek to limit their liability
against such third party.
23. INSOLVENCY
Upon the occurrence of each or any of the following events:
(i) if, except for the purposes of re-organisation, any Party is wound
up or a petition is presented or an order is made or a resolution
is passed for the winding up of any Party or a meeting is convened
for the purpose of considering any such resolution;
(ii) if any Party is placed under official management, that is if,
pursuant to a resolution of creditors or members of that Party or
an order of a court, a person is appointed to take custody of all
or part of the property of that Party and to conduct its business
and manage its affairs and comply with the legislation in respect
of companies applicable in the place where he is so appointed, or
if any Party causes a meeting of its members or creditors to be
summoned for the purpose of placing it under official management;
(iii) if any Party makes default under any charge or security in favour
of any creditor of that Party;
(iv) if any indebtedness of any Party becomes due and payable prior to
the stated maturity thereof as a result of a default or is not
paid upon the maturity thereof;
(v) if an inspector of all or any part of the affairs of any Party is
appointed pursuant to the legislation in respect of companies
applicable in the place of incorporation of that Party or in a
place where that Party carries on business;
(vi) if a compromise or arrangement is proposed between any Party and
its creditors or any class of them or if an application is made to
a court for an order summoning a meeting of creditors or any Class
of them of any Party;
then any Party affected by each or any of the above listed events shall
immediately inform all the other Parties thereof, and all the Parties
shall then consult to decide what further action is necessary.
24. INSURANCE
(a) Each Cableship Operator respectively shall be responsible for obtaining
its necessary insurance coverage.
(b) If requested by a Maintenance Authority, the Cableship Operator shall
provide individually and on a confidential basis to that Maintenance
Authority copies of relevant insurance policies and, if applicable,
copies of the booklet giving details of the Protection and Indemnity
cover and proper evidence of the payment of all premiums.
25. FORCE MAJEURE
(a) The Cableship Operator shall not be liable for any inability or
delay in carrying out work on the Scheduled Cables if prevented
from doing so for reasons beyond their reasonable control.
(b) In particular, Cableships Operators shall not be liable for any
delay or failure to carry out their duties and obligations hereto
arising out or resulting from (including but not limited to):
- Fire, unless caused by the actual fault or privity of a
Cableship Operator.
- Perils, dangers, and accidents of the sea or other
navigable waters.
- Act of God.
- Act of War.
- Act of public enemies.
- Arrest or restraint of princes, rulers or people, or
seizure under legal process.
- Quarantine restrictions.
- Act of omission of the Maintenance Authority, its agent or
the Maintenance Authority's authorised representative(s).
- Strikes or lockouts or stoppage or restraint of labour from
whatever cause, whether partial or general.
- Riots and civil commotions.
- Saving or attempting to save life or property at sea or to
take aboard or land refugees.
- Loss or damage arising from inherent defect, quality or
vice of the Maintenance Authorities plant and equipment.
- Latent defects not discoverable by due diligence.
- Pirates or assailing thieves.
- Adverse weather conditions.
26. DURATION OF AGREEMENT
This Agreement shall become effective on January 11, 1999 and shall
expire 5 years from that date, but may continue beyond that date by
agreement amongst the Parties.
At least one year before the date of such expiry, the Parties shall
decide on a possible continuance of this agreement on a year by year
renewal basis.
27. GOVERNING LAW
This Agreement shall in all respects be governed by and be construed in
accordance with the laws of Switzerland - Canton of Geneva.
28. ARBITRATION
(a) All disputes arising in connection with this Agreement and which
cannot be settled by amicable negotiation to the mutual
satisfaction of the Parties concerned by, the dispute shall be
finally settled under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce in Paris as in effect on the
date hereof by one or more arbitrators appointed in accordance
with the said Rules.
(b) The site of the arbitration shall be Geneva (Switzerland). The
language of the arbitration shall be English. The arbitrators will
apply the procedural rules of arbitration of the International
Chamber of Commerce. Any award rendered shall be final and
conclusive and judgement thereon may be rendered in any court
having jurisdiction for its enforcement.
(c) The performance of this Agreement by the Parties shall continue
during such arbitration or legal proceedings.
29. RELATIONSHIP OF THE PARTIES
The relationship between or amongst the Parties shall not be that of
partners and nothing herein contained shall be deemed to constitute a
partnership between them, and the common enterprise amongst the Parties
shall be limited to the express provisions of this Agreement.
30. STATUS OF CABLESHIPS AND ASSOCIATED FACILITIES
Nothing herein shall be construed as a demise or charter of a Cableship
to any of the Parties.
31. AMENDMENTS
(a) This Agreement and any of the provisions herein, unless as
expressly provided for herein, may only be altered or added to in
writing signed by a duly authorised person on behalf of each
Party.
(b) Except as otherwise provided for herein, Schedules B1, B2 & B3,
C3, F1 and I only may be amended subject to agreement by fax
between and amongst all the Parties.
32. ASSIGNMENT
No Party shall, without the written consent of all the other Parties,
which consent shall not be unreasonably withheld, sell, transfer or
dispose of its rights or obligations under this Agreement except to its
parent/subsidiary company or a statutory successor by operation of law.
33. EXECUTION AND COUNTERPART
This Agreement shall be executed in 33 counterparts in the English
language and each counterpart when delivered shall be considered an
original.
New Maintenance Authorities shall be added to this Agreement by means of
a Document of Accession as set forth in Schedule E and the Document of
Accession shall for each such addition be executed in two counterparts in
the English language and certified copies shall be delivered to all the
Parties.
34. INTERPRETATION
All references to the Party(ies), Article(s), and Schedule(s) refer to
the Party(ies), Article(s) and Schedule(s) under this Agreement. In
addition, and where the context so requires, the singular shall be taken
to mean the plural and the plural shall be taken to mean the singular.
35. ENTIRE AGREEMENT
This Agreement together with the Schedules hereto constitutes the entire
agreement between the Parties in relation to its subject matter and
supersedes all prior verbal or written understandings between and among
the Parties.
This Agreement supersedes all prior verbal or written understandings
between the Parties and constitutes the entire agreement with respect to
the subject matter of this Agreement
This Agreement includes the following documents which are attached hereto
and incorporated herein by reference.
A. List of Parties
Al. List of Parties to this Agreement - Maintenance Authorities
A2. List of Parties to this Agreement - Cableship Operators
B. List of Scheduled Cables
C. Cableships fixed Standing Charges allocation and Running Costs
C1. Standing Charges
C2. Running Costs
C3. Estimated for 1998
E. Proforma Document of Accession
F. Previous Cableship Agreements
G. Management Committee Terms of Reference
H. Basic Cableship Technical Criteria
H.O. BASIC CABLESHIP TECHNICAL CAPABILITIES
H.I. XX XXXXX
H.2. CS TELIRI
H.3. CS TENEO
H.4. CS CERTAMEN
H.5. STANDARD/SPECIFIC CABLES
I. Representatives of the Parties and Mailing Addresses and Contacts
for Financial and Maintenance Purposes
J. Sailing/repair standard duration
Schedule D is not part of the Entire Agreement
36. HEADINGS
For the purposes of interpretation of this Agreement and Schedules, all
headings thereof shall be deemed not to form part of this Agreement.
37. REPRESENTATIVES AND CORRESPONDENCE
The Parties shall inform each other of their representatives for the
purpose of correspondence between the Parties.
38. NOTICES
(a) Any notice or consent required or permitted hereunder shall be
given in writing or confirmed in writing as the context so
requires and shall be deemed to be duly given if deposited by hand
at, or despatched by airmail of the most expeditious class or by
fax or electronic mail addressed to the registered office last
quoted by the Party to whom it is addressed.
(b) Unless it is expressly provided for herein or otherwise agreed,
any such notice or consent shall be deemed to be served ten days
from the date of despatch.
39. PUBLICITY
Any publicity or news releases regarding this Agreement shall not be
issued or published without the prior agreement of the Parties.
40. INFORMATION
Information furnished by one Party to another shall be kept confidential
by the Party receiving it and shall be used only for the purposes of this
Agreement, and may not be used for any other purposes without the prior
written consent of the Party owning the Information, unless such
Information:
(i) was previously known to the receiving Party free of any obligation
to keep it confidential, or
(ii) has come into the public domain other than by a breach of
confidentiality by the receiving Party, or
(iii) is received from a third party without similar restriction and
without breach of this Agreement, or
(iv) is necessary or proper disclosure under any applicable law, rule
or regulation or pursuant to the direction of any Governmental
Entity or Agency having jurisdiction in any country of the
Parties.
41. PERFORMANCE OF AGREEMENT
The performance of this Agreement by the Parties hereto shall be
contingent upon either:
(i) the continued operation of at least one Scheduled Cable; it
being understood that the Parties shall consult each other
in such event and shall confer to decide further action
including the termination of this Agreement
or
(ii) the necessary government approvals.
42. PERFORMANCE OF AGREEMENT
The performance of this Agreement by the Parties hereto shall be
contingent upon either:
(i) the continued operation of at least one Scheduled Cable; it
being understood that the Parties shall consult each other
in such event and shall confer to decide further action
including the termination of this Agreement.
or
(ii) the necessary government approvals.
43. SEVERABILITY
If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate
or render unforceable 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.
44. WAIVER
The waiver of any breach of any term or condition of this Agreement shall
not be deemed to be a waiver of any other breach of the same or any other
term or condition of this Agreement. No waiver shall be valid unless it
is written and signed on behalf of the Party making the waiver.
