SCARAB III AND IV
USERS AGREEMENT
TABLE OF ARTICLES
ARTICLE
PREAMBLE PAGE
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1. DEFINITIONS 2-4
2. INTERPRETATION 5
3. PURPOSE OF THIS AGREEMENT 5
4. PARTICIPATION OF OTHER PARTIES 5
5. OPERATING COMMITTEE 6-7
6. CENTRAL BILLING PARTY 7-8
7. PREPARATION AND AMENDMENT Or SCHEDULE C 8
8. USE OF SCARAB SYSTEMS AM CHARGES 9-11
9. SCARAB SYSTEM AVAILABILITY 11
10. OPERATING PROCEDURES 12
11. OPERATIONAL RESPONSIBILITIES 13-14
12. PRIORITY OF USE OF SCAM SYSTEMS 14-15
13. ALLOCATION OF COSTS 15
14. CAPITAL ADDITIONS AND COST ESCALATION 15
15. ESTIMATED STANDING CHARGES AND RUNNING COSTS 15-16
16. ALLOCATION OF STANDING CHARGES 17
17. ALLOCATION OF RUNNING COSTS 17-19
18. BILLING ARRANGEMENTS 24-28
19. ACTUALS ADJUSTMENT 22
TABLE OF ARTICLES
ARTICLE
PREAMBLE PAGE
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20. SCAM SYSTEM COSTS IN PARTICULAR CIRCUMSTANCES 22-23
21. TOTAL LOSS OR CONSTRUCTIVE TOTAL LOSS 23-24
22. KEEPING OF RECORDS 30
23. LIABILITY AND INDEMNITY 24-25
24. RELATIONSHIP AMONG THE PARTIES 25
25. PERFORMANCE OF AGREEMENT 25
26. AMENDMENTS TO AGREEMENT 26
27. ASSIGNMENT OR TRANSFER 26-27
28. TERM OF THIS AGREEMENT 33-34
29. AGREEMENT BINDING ON SUCCESSORS 27
30. EXECUTION OF AGREEMENT 27
31. TESTIMONIUM 28-29
TABLE OF SCHEDULES
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PAGE
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SCHEDULE A SCARAB SYSTEM OWNERS 30
SCHEDULE B PROCEDURES FOR THE DERIVATION OF ACCOUNTING 31-32
UNITS FOR DESIGNATED CABLES
Schedule C Schedule of Cables and Accounting Units: 39-41
Schedule C1 - EAST XXXX 00-00
Xxxxxxxx X0 - XXXX XXXX 42-44
Schedule D Definition of STANDING CHARGES and 49-52
RUNNING COSTS.
Schedule E COMMITMENT AGREEMENT 55-56
Schedule F Telex/Fax Formats
Schedule Fl - Notification of Commencement of a SCARAB 57
operation.
Schedule F2 - Notification of Completion of a SCARAB 58
operation.
Schedule F3 - Notification of change of SCARAB System 59
operational status.
Schedule F4 - Estimate of RUNNING COSTS for SCARAB 60
System operation.
Schedule G SCARAB SYSTEM PERFORMANCE SPECIFICATIONS
Schedule Gl - SCARAB III 61-64
Schedule G2 - SCARAB IV 65-66
SCARAB III AND IV USERS AGREEMENT
PREAMBLE
This SCARAB III & IV Users Agreement (hereinafter referred to as this
"AGREEMENT") made and entered into this 28 day of February 1990, between and
among American Telephone and Telegraph Company, a corporation organised and
existing under the laws of the State of New York and having an office at 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, XXX (herein called "AT&T");
Transpacific Communications, Incorporated, a corporation organised and existing
under the laws of the State of Delaware, and having an office at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, XXX (herein called "TRANSPACIFIC");
British Telecommunications ple, a public limited company, registered in England
(No: 1800000) whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XXxX 0XX,
Xxxxxxx (herein called "British Telecom"or "BT"); BT(Marine) Ltd, having its
registered office at Berth 000, Xxxxxxx Xxxxx, Xxxxxxxxxxx, XX0 0XX Xxxxxxx
(herein called "BT(M)"); Ministere des Postes des Telecommunications et de
l'Espace de la Republique Francaise (herein called "FRANCE TELECOM"); Telefonica
de Espana S.A., a corporation organised and existing under the laws of Spain and
having its principal office at Xxxx Xxx 00, Xxxxxx, Xxxxx (herein called
"TELEFONICA"); Telecommunications Marinas S.A., whose registered office is at
Xxxxx 0, 0xx Xxxxx, 00000 Xxxxxx, Xxxxx (herein called "TEMASA"); Teleglobe
Canada Inc., a Canadian business corporation having its registered office at 000
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx (herein called
"TELEGLOBE") and Teleglobe Marine Inc, a Canadian business corporation having
its registered office at 0000 Xxx Xxxxxxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx
(herein called "TMI"), herein referred to collectively as the "PARTIES"
WITNESSETH:
WHEREAS the PARTIES all have an interest in the efficient and effective
construction, laying, installation, operation, maintenance and repair of
submarine cable systems in the Atlantic Ocean region including the Caribbean and
Mediterranean Seas and
WHEREAS the PARTIES all have an interest in the support and use of appropriate
work tools to assist in such activities and
WHEREAS the PARTIES or their parents were among the parties to the SCARAB I & II
Users Agreement made on 29 June 1984 effective from 1 July 1983, as amended
(herein called "the 1984 Users Agreement") and
WHEREAS the PARTIES or their parents were the parties to the Interim Agreement
to Plan for the Implementation of New SCARAB Systems entered into on 22
September 1988 (herein called "the Interim Agreement") and
WHEREAS the PARTIES now wish to replace the Interim Agreement and to provide for
the support and use of SCARAB III and SCARAB IV and
WHEREAS the PARTIES now wish to replace the Interim Agreement and to provide for
the support and use of SCARAB III and SCARAB IV on similar terms to those of the
1984 Users Agreement.
NOW, THEREFORE, the PARTIES, in consideration of the mutual covenants herein
expressed, agree with each other as follows:
ARTICLE 1
DEFINITIONS
1. In this AGREEMENT, unless the context otherwise requires, the following
expressions have the meanings hereby assigned to them:
1.1 "ACCOUNTING UNITS" for DESIGNATED CABLES means the units
within a ZONE used to form the basis for allocating the costs
of the SCARAB SYSTEMS to DESIGNATED CABLES within a ZONE and
are calculated as described in Article 7.
1.2 "ATLANTIC CABLE MAINTENANCE AND REPAIR AGREEMENT"
(ACMA) means the agreement effective from 1 April 1989, or its
successor, between and among cable maintenance authorities and
ship owners for the maintenance of cables in the Atlantic
Area.
1.3 "CAPITAL ADDITIONS" means expenditures for enhancements or
additions of a capital nature to the SCARAB SYSTEMS that occur
after the INITIAL CAPITAL COST.
1.4 "CENTRAL BILLING PARTY" means the PARTY designated in
Article 6.
1.5 "COMMITMENT AGREEMENT" means the formal agreement defined in
Article 4 whereby an entity, not a signatory to this
AGREEMENT, participates in the use of the SCARAB SYSTEMS.
1.6 "DESIGNATED CABLES" means the cables entered into the ACMA
which are listed in Schedule C.
1.7 "FINANCIAL YEAR" means the period between the respective
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OPERATIONAL DATE of each SCARAB SYSTEM and 31 March 1991 and
each subsequent period of twelve (12) months ending on 31
March each year.
1.8 "FORCE MAJEURE" means such circumstances or events that are
outside the control of the PARTIES, such circumstances or
events include, but would not be restricted to, acts of God,
or of the public enemy, acts of governments, insurrection,
fires, floods, epidemics, quarantine restrictions, freight
embargoes, strikes or adverse weather conditions.
1.9 "INITIAL CAPITAL COST" of each SCARAB SYSTEM means the total
construction cost of each SCARAB SYSTEM determined in
accordance with the relevant provisions of the SCARAB OWNERS
AGREEMENT and advised in writing to the PARTIES to this
AGREEMENT.
1.10 "MAINTENANCE & IMPROVEMENT" means work carried out on a
DESIGNATED CABLE, other than a REPAIR, involving the use of a
SCARAB SYSTEM and which is deemed by the relevant MAINTENANCE
AUTHORITY to be required in order to reduce the susceptibility
of the DESIGNATED CABLE to furnish service-affecting faults,
however caused.
1.11 "MAINTENANCE AUTHORITY", in relation to a DESIGNED CABLE,
means a telecommunications administration or recognised
private operating agency which is solely or jointly
responsible for the maintenance of that DESIGNATED CABLE as
shown in Schedule C.
1.12 "NON-DESIGNATED CABLES" means cables entered into the ACM
which are not listed in Schedule C.
1.13 "OPERATOR" means an OWNER who has been directly assigned by
the respective OWNERS to be responsible for the operation and
maintenance of a particular SCARAB SYSTEM.
1.14 "OPERATING COMMITTEE" means a committee established under
Article 5.
1.15 "OPERATING COSTS" means those costs incurred, excepting
Depreciation, Interest on Capital and RUNNING COSTS, in the
operation and maintenance of the SCARAB SYSTEMS.
1.16 "OPERATIONAL DATE" of each SCARAB SYSTEM means the date upon
which the respective SCARAB SYSTEM entered into service,
determined in accordance with the relevant provisions of the
SCARAB OWNERS AGREEMENT and advised in writing to the PARTIES
to this AGREEMENT.
1.17 "OUTSIDE WORK" means the categories of work defined in
Articles 8.3 and 8.4.
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1.18 "OWNER" means a PARTY identified in Schedule A as having an
investment in the SCARAB SYSTEMS.
1.19 "PARTY" means a signatory to this AGREEMENT or to a COMMITMENT
AGREEMENT.
1.20 "PORT" means the port from which a ship departs or returns
with a SCARAB SYSTEM for an operation.
1.21 "REPAIR" means work carried out on a DESIGNATED CABLE
involving the use of a SCARAB SYSTEM and which is deemed by
the relevant MAINTENANCE AUTHORITY to be required in order to
remedy a service-affecting fault suffered by the DESIGNATED
CABLE, however caused.
1.22 "RUNNING COSTS" means costs, additional to STANDING CHARGES,
which are incurred specifically as a result of an individual
operation or operations, as defined in Schedule D.
1.23 "SCARAB III" means an unmanned submersible system together
with supporting ancillary equipment as further defined in
Schedule G1 and collectively owned and operated by the
relevant OWNERS listed in Schedule A.
1.24 "SCARAB IV" means an unmanned submersible system together with
supporting ancillary equipment as further defined in Schedule
G2 and collectively owned and operated by the relevant OWNERS
listed in Schedule A.
1.25 "SCARAB SYSTEM" means a reference equally applicable to either
or both SCARAB III and SCARAB IV.
1.26 "SCARAB OWNERS AGREEMENT" means the Agreement known as the
SCARAB III & IV Owners Agreement among the owners of the
SCARAB SYSTEMS.
1.27 "STANDING CHARGES" means the costs as defined in Schedule D.
1.28 "ZONE" means an operational area (as defined in the ACMA as
either "EAST" or "WEST") to which a SCARAB SYSTEM is primarily
assigned.
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ARTICLE 2
INTERPRETATION
2.1 Schedules A through to G2 attached hereto are an integral part
of this AGREEMENT and any reference herein to a Schedule is a
reference to a Schedule to this AGREEMENT.
2.2 The marginal titles of Articles do not form part of this
AGREEMENT.
2.3 Any reference herein to an Article, Paragraph or Sub-paragraph
is a reference to an Article, Paragraph or Sub-paragraph of
this AGREEMENT.
ARTICLE 3
PURPOSE OF THIS AGREEMENT
3.1 The purpose of this AGREEMENT is to provide the terms and
conditions for the support and use of the SCARAB SYSTEMS.
3.2 This AGREEMENT shall supersede and replace the Interim
Agreement in respect of each SCARAB SYSTEM with effect from
the respective OPERATIONAL DATE of each SCARAB SYSTEM and
shall from each such OPERATIONAL DATE govern the relationship
of the PARTIES in all respects as to the support and use of
the respective SCARAB SYSTEM.
3.3 The PARTIES hereby remise, release and discharge each other
from any claims upon each other for any deeds or actions
performed or not performed before the respective OPERATIONAL
DATE with respect to their interests in the respective SCARAB
SYSTEM.
ARTICLE 4
PARTICIPATION OF OTHER PARTIES
4.1 The OPERATING COMMITTEE may agree to invite other parties to
the ACMA to participate in the use of the SCARAB SYSTEMS under
the terms and conditions of this AGREEMENT. Such participation
shall be effected by such other party entering into a
COMMITMENT AGREEMENT, annexed as Schedule E, and thereby
sharing in the rights and obligations of this AGREEMENT.
4.2 The PARTIES shall hereby authorise the Chairman of the
OPERATING COMMITTEE to sign such COMMITTEE AGREEMENT for and
on their behalf.
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ARTICLE 5
OPERATING COMMITTEE
5.1 The OPERATING COMMITTEE is hereby established to supervise the
operation of this AGREEMENT and shall comprise a single
representative of each of the PARTIES.
5.2 The OPERATING COMMITTEE shall elect a Chairman annually from
among its members. All decisions of the OPERATING COMMITTEE,
including election of its Chairman, shall be subject in the
first instance to consultation among its members who shall
endeavour to make decisions by agreement. In the event it
fails to reach agreement, it shall make decisions by votes
cast at a meeting of the OPERATING COMMITTEE by its members
weighted in the same proportion as their percentage
contribution to STANDING CHARGES shown on Schedule C of this
AGREEMENT. Should the question before the OPERATING COMMITTEE
relate specifically to either the EAST ZONE or the WEST ZONE
SCARAB SYSTEM operations then votes shall be weighted in
accordance with the sum total of Schedule C applicable to that
ZONE. If the question before the OPERATING COMMITTEE relates
to both ZONES then votes will be in accordance with the
percentage contributions to STANDING CHARGES related to a
combination of Schedules C1 and C2. A concurring vote of at
least three (3) PARTIES representing over fifty (50) per cent
of the weighted voting rights for the affected ZONE, shall be
required to decide any question before the OPERATING
COMMITTEE. No vote shall be taken unless at least two (2)
weeks notice of the meeting has been given. However, on the
agreement of all PARTIES, the two (2) weeks written notice may
be waived, and voting may take place, by telex or facsimile.
5.3 The OPERATING COMMITTEE shall:
5.3.1 Meet as often as circumstances require, but not
less than once a year, to review the operation of
the AGREEMENT.
5.3.2 Share experiences of the effectiveness and
efficiency of SCARAB SYSTEM operations and review
the operational performance of the SCARAB SYSTEMS
and of the OPERATORS.
5.3.3 Approve the inclusion of CAPITAL ADDITIONS in the
calculation of the STANDING CHARGES of the SCARAB
SYSTEMS in accordance with the relevant
provisions of Article 14.
5.3.4 Approve the Estimated STANDING CHARGES and
Estimated RUNNING COSTS of the SCARAB SYSTEMS in
accordance with the relevant provisions of
Article 15.
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5.3.5 Appoint the CENTRAL BILLING PARTY in accordance with
Article 6.1.
5.3.6 Approve the estimated CENTRAL BILLING PARTY costs in
accordance with Article 6.4.
5.3.7 Appoint the Appointed Party in accordance with
Article 7.1.
5.3.8 Agree on an annual schedule of planned use of the
SCARAB SYSTEMS taking into account each MAINTENANCE
AUTHORITY'S respective contribution to STANDING
CHARGES in planning access to the SCARAB SYSTEMS.
5.3.9 Make decisions as to the participation of new parties
in accordance with the provisions of Article 4.
5.3.10 Resolve conflicts, if any, over use of SCARAB
SYSTEMS.
5.3.11 Establish such sub-committees and working parties as
it considers necessary to assist in carrying out its
functions.
ARTICLE 6
CENTRAL BILLING PARTY
6.1 The OPERATING COMMITTEE shall by agreement appoint one PARTY
to act as CENTRAL BILLING PARTY for the purpose of this
AGREEMENT. Unless and until otherwise decided by the OPERATING
COMMITTEE, BRITISH TELECOM shall act as CENTRAL BILLING PARTY
for the duration of this AGREEMENT.
6.2 The CENTRAL BILLING PARTY shall be responsible for the
submissions of billing, accounting and settlement of all
amounts due from the MAINTENANCE AUTHORITIES under this
AGREEMENT and for the disbursement and settlement of all
amounts due to the OWNERS under this AGREEMENT.
6.3 The CENTRAL BILLING PARTY shall also undertake the necessary
liaison with the Central Billing Party appointed under the
SCARAB OWNERS AGREEMENT.
6.4 At least two months before the beginning of each FINANCIAL
YEAR, the CENTRAL BILLING PARTY will provide an estimate of
the cost of carrying out the central billing functions during
that FINANCIAL YEAR for the approval of
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the OPERATING COMMITTEE. The costs actually incurred by the
CENTRAL BILLING PARTY in carrying out the central billing
functions shall be charged to the MAINTENANCE AUTHORITIES as
described in Article 18.7.
6.5 Not more than two months after the end of each FINANCIAL YEAR,
the CENTRAL BILLING PARTY shall submit an Annual Report and
Accounts to the PARTIES describing and summarising its
activities in discharging the CENTRAL BILLING functions during
the FINANCIAL YEAR concerned.
ARTICLE 7
PREPARATION AND AMENDMENT OF SCHEDULE C
7.1 The OPERATING COMMITTEE shall appoint one of the PARTIES to
prepare and revise Schedule C semi-annually. Unless and until
otherwise decided by the OPERATING COMMITTEE, AT&T shall act
as the Appointed Party for the duration of this AGREEMENT.
7.2 The ACCOUNTING UNITS for each DESIGNATED CABLE shall be
derived and revised by the Appointed Party in accordance with
Schedule B. After the ACCOUNTING UNITS are revised, the
Appointed Party shall, in accordance with Schedule B, prepare
and send to each PARTY and the CENTRAL BILLING PARTY revised
Schedules Cl and C2. The revised Schedules C1 and C2 shall
become effective on 1 April, 1 October or such other dates as
required and specified in Schedule B.
7.3 Each MAINTENANCE AUTHORITY for (a) a new cable system which
when introduced into the ACMA will be included in this
AGREEMENT as a DESIGNATED CABLE, (b) a DESIGNATED CABLE that
will be introducing newly equipped spare capacity into
service, (c) a DESIGNATED CABLE that will be expanding or
reducing its Bearer Capacity, (d) a DESIGNATED CABLE which is
to be taken out of service, (e) a DESIGNATED CABLE that will
incur an expansion or reduction in Notional Capacity or (f) a
DESIGNATED CABLE in respect of which the number of buried
nautical miles has been significantly increased; shall
promptly notify the Chairman of the OPERATING COMMITTEE, the
PARTIES and the Appointed Party of the relevant facts, and
Schedules Cl and C2 shall be amended in accordance with
Schedule B.
ARTICLE 8
USE OF SCARAB SYSTEMS AND CHARGES
8.1 SCARAB III shall primarily be assigned to and operated in the
EAST ZONE and
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SCARAB IV shall primarily be assigned to and operated in the
WEST ZONE. The cost of each SCARAB SYSTEM shall be allocated
to its respective assigned ZONE on the basis defined in
Articles 16 and 17.
8.2 The SCARAB SYSTEMS shall be used primarily for the REPAIR of
DESIGNATED CABLES in order to insure the continuity of service
provided by such cables. Subject to such requirements being
satisfied, the SCARAB SYSTEMS shall be used for the
MAINTENANCE & IMPROVEMENT of the DESIGNATED CABLES on an
interruptible basis. The charges and their allocation
applicable to these categories of use and the basis of
availability shall be as follows:
8.2.1 REPAIR OF DESIGNATED CABLES: For the period of such
work, all RUNNING COSTS, including those for Passage
Time and, if applicable, mobilisation aboard the Host
Vessel and demobilisation, shall be borne by the
MAINTENANCE AUTHORITY responsible for the DESIGNATED
CABLE under REPAIR. STANDING CHARGES shall continue
to be allocated according to Article 16.
8.2.2 MAINTENANCE & IMPROVEMENT OF DESIGNATED CABLES:
a) For the period of such work, all RUNNING
COSTS, including those for Passage Time, and
if applicable, mobilisation and
demobilisation, shall be borne by the
MAINTENANCE AUTHORITY responsible for the
DESIGNATED CABLE concerned. STANDING CHARGES
shall continue to be allocated according to
Article 16.
b) In the event that the planned requirement of
the MAINTENANCE AUTHORITIES for MAINTENANCE
& IMPROVEMENT work at the beginning of the
FINANCIAL YEAR shall exceed the then
envisaged availability of the SCARAB
SYSTEMS, the OPERATING COMMITTEE shall
decide how the envisaged SCARAB SYSTEM
availability shall be allocated between the
MAINTENANCE AUTHORITIES. Such allocations
shall take into consideration: -
i) the number and aggregate duration
of the requirements of each
MAINTENANCE AUTHORITY for the
FINANCIAL YEAR in question, and
ii) the respective number of ACCOUNTING
UNITS of the DESIGNATED CABLES for
which MAINTENANCE & IMPROVEMENT
work is requested.
8.2.3 For the period of other activities of an
interruptible nature as approved by
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the OPERATING COMMITTEE, all RUNNING COSTS, including
those for Passage Time and, if applicable,
mobilisation and demobilisation, shall be borne by
the MAINTENANCE AUTHORITY responsible for such
activity. STANDING CHARGES shall continue to be
allocated according to Article 16.
8.3 Provided that the availability of the SCARAB SYSTEMS to
undertake the REPAIR and MAINTENANCE & IMPROVEMENT of the
DESIGNATED CABLES is not thereby prejudiced, the SCARAB
SYSTEMS may be used, with the approval of the relevant OWNERS
and of the OPERATING COMMITTEE, which approval shall not be
unreasonably withheld, by the OWNERS on behalf of a
MAINTENANCE AUTHORITY for construction work, including survey,
on cable systems which, when introduced into the ACMA will be
included as DESIGNATED CABLES. For the period of such work,
including Passage Time and, if applicable, mobilisation and
demobilisation, STANDING CHARGES and RUNNING COSTS shall not
be charged to this AGREEMENT.
8.4 The use of a SCARAB SYSTEM by the relevant OWNERS or on behalf
of a MAINTENANCE AUTHORITY for purposes other than those
described in Articles 8.2 and 8.3 shall be subject to the
approval of the OPERATING COMMITTEE. For the period of such
use, including Passage Time and, if applicable, mobilisation
and demobilisation, STANDING CHARGES and RUNNING COSTS shall
not be charged to this AGREEMENT. The OPERATING COMMITTEE
shall determine the magnitude of any amount which the relevant
OWNERS or MAINTENANCE AUTHORITY concerned shall credit or
otherwise under this AGREEMENT in respect of such use.
8.5 For any period spent (with the consent of the OPERATING
COMMITTEE members that are a Maintenance Authority within the
affected ZONE) in exercising a SCARAB SYSTEM and in training
the OPERATOR'S team, the STANDING CHARGES and the RUNNING
COSTS, including those incurred during Passage Time and, if
applicable, mobilisation and demobilisation shall be allocated
as provided in Articles 16 and 17.
8.6 In the event of either SCARAB SYSTEM not being available for
the REPAIR of a DESIGNATED CABLE in its assigned ZONE, the
remaining SCARAB SYSTEM may, at the request of a MAINTENANCE
AUTHORITY and with the agreement of the MAINTENANCE
AUTHORITIES in the remaining SCARAB SYSTEM's assigned ZONE, be
transferred between ZONES to effect REPAIR to that DESIGNATED
CABLE save that:
i) The remaining SCARAB SYSTEM shall complete any
REPAIRS on a DESIGNATED CABLE to which it is
committed in its own ZONE before
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such transfer is permitted.
ii) The remaining SCARAB SYSTEM may be immediately
recalled to its assigned ZONE in the event of a
REPAIR being required for a DESIGNATED CABLE in its
assigned ZONE with a greater number of ACCOUNTING
UMTS than the cable under REPAIR in the other ZONE.
iii) For the period of such transfer between ZONES,
STANDING CHARGES and RUNNING COSTS including, if
applicable, those for mobilisation and demolisation,
shall be allocated in accordance with Articles 16 and
17.
ARTICLE 9
SCARAB SYSTEM AVAILABILITY
9.1 The OPERATOR and the respective OWNERS of each SCARAB SYSTEM
shall use their beSt efforts to make the respective SCARAB
SYSTEM operationally available for use at all times for work
on the DESIGNATED CABLES except in the following
circumstances:-
9.1.1 whilst the SCARAB SYSTEM is undergoing periodic
maintenance or refurbishment.
9.1.2 from the starting date of any OUTSIDE WORK until its
conclusion.
9.1.3 whilst the SCARAB SYSTEM is unavailable by reason of
FORCE MAJEURE.
9.1.4 whilst the SCARAB SYSTEM is damaged to the extent
that it cannot perform REPAIRS or MAINTENANCE &
IMPROVEMENT work as envisaged in Article 20.1 or it
becomes a total loss or a constructive total loss.
9.2 Article 20 contains provisions concerning the treatment of
SCARAB SYSTEM costs for periods during which a SCARAB SYSTEM
is unavailable.
ARTICLE 10
OPERATING PROCEDURES
10.1 On receipt by an OPERATOR of notification by a MAINTENANCE
AUTHORITY that a SCARAB SYSTEM is required to undertake work
on a DESIGNATED CABLE, the OPERATOR shall take the necessary
action to ensure that the SCARAB SYSTEM is mobilised aboard
the nominated Host Vessel without avoidable delay. Where
notification is given by telephone, it shall
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be confirmed by telex or facsimile at the earliest
opportunity.
10.2 The MAINTENANCE AUTHORITY requesting the use of a SCARAB
SYSTEM shall be responsible for the nomination, engagement and
costs of a suitable Host Vessel. Notwithstanding the
foregoing, the OPERATOR of the respective SCARAB SYSTEM shall
be responsible for determining the suitability of any
nominated Host Vessel and the OPERATOR's decision in this
regard shall be final.
10.3 When an OPERATOR is notified to commence a SCARAB SYSTEM
operation under this AGREEMENT or when a SCARAB SYSTEM changes
operational status, the respective OPERATOR shall, within 24
hours, notify the MAINTENANCE AUTHORITIES in the ZONE and the
other OWNERS, by telex or facsimile, as specified below:
10.3.1 Upon receipt of notification by an OPERATOR that
the respective SCARAB SYSTEM is required to
undertake an operation, the OPERATOR shall
transmit a Notification of Commencement of a
SCARAB SYSTEM operation in accordance with
Schedule Fl.
10.3.2 After completion of the SCARAB SYSTEM operation,
the OPERATOR shall transmit a Notification of
Completion of a SCARAB SYSTEM operation in
accordance with Schedule F2.
10.3.3 Upon a SCARAB SYSTEM's change in operational
status (ie: standby, repairs, OUTSIDE WORK,
training exercises, etc.) the respective OPERATOR
shall transmit a notification of the change in
status in accordance with Schedule F3.
10.4 As soon as practicable after the completion of a SCARAB SYSTEM
operation under this AGREEMENT, the respective OPERATOR shall
advise the MAINTENANCE AUTHORITIES on whose behalf the
operation was undertaken, by telex or facsimile, of the
estimated RUNNING COSTS of the SCARAB SYSTEM on such operation
in the format of Schedule F4.
ARTICLE 11
OPERATIONAL RESPONSIBILITIES
11.1 The responsibility for planning and directing work on a
DESIGNATED CABLE shall rest with the OPERATOR of the
respective SCARAB SYSTEM unless the MAINTENANCE AUTHORITY
concerned has elected to take on that responsibility.
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11.2 Whether or not such an election has been made:-
11.2.1 each SCARAB SYSTEM shall at all times remain under
the direct control of the respective OPERATOR and
nothing in this AGREEMENT shall be construed as a
demise or charter of a SCARAB SYSTEM to the
MAINTENANCE AUTHORITIES, jointly or severally, and
11.2.2 nothing in this AGREEMENT shall be deemed to reduce,
interfere with, or otherwise impair the full
authority and responsibility of the OPERATOR of a
SCARAB SYSTEM for its safe operation and navigation,
or for the safety of the OPERATOR'S personnel. In
complying with any directions given by an Authorised
Shipboard Representative designated by a MAINTENANCE
AUTHORITY, the OPERATOR shall take full account of
the risk of impairing the safety of the SCARAB SYSTEM
and of the OPERATOR's personnel.
11.3 SCARAB SYSTEM operations shall be carried out in accordance
with the instructions supplied by the appropriate MAINTENANCE
AUTHORITY. If no such instructions are received, the normal
practices of the respective OPERATOR may be followed.
11.4 The MAINTENANCE AUTHORITY for whom any work is being carried
out may assign to the operation concerned one (or, if
accommodation is available, more than one) representative for
the duration of the work. However, permission to board the
Host Vessel by any such representative shall be subject to the
acceptance by the representative and the MAINTENANCE AUTHORITY
of the Host Vessel owner's waiver-of-liability requirements.
11.5 A MAINTENANCE AUTHORITY which has elected to undertake the
responsibility for planning and directing any work, shall
designate in writing its "Authorised Shipboard
Representative". If it does not do so, it shall designate in
writing an "Authorised Shore Representative".
11.6 The function of the Authorised Shipboard Representative or the
Authorised Shore Representative designated under Article 11.5
is to communicate to the OPERATOR (in writing, or by
confirmatory radio message, if reasonably required) the
requirements of the MAINTENANCE AUTHORITY concerning the work;
these requirements shall relate only to the particular
operation on which the SCARAB SYSTEM is then engaged.
11.7 The relevant MAINTENANCE AUTHORITY shall be responsible for
ensuring that the OPERATOR is provided with cable system
documentation and any
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specialised equipment and expertise identified by the OPERATOR
as necessary for the operation concerned. The OPERATOR shall
exercise due diligence for the safe keeping of any plant and
equipment provided by a MAINTENANCE AUTHORITY.
ARTICLE 12
PRIORITY OF USE OF SCARAB SYSTEMS
12.1 In the event of competing claims for the services of a SCARAB
SYSTEM to undertake REPAIR operations on two or more
DESIGNATED CABLES within a ZONE, the MAINTENANCE AUTHORITIES
concerned shall consult with one another having regard to the
consequences resulting from the failures and with a view to
agreeing on the sequence of SCARAB SYSTEM REPAIR operations.
If no agreement is reached, first priority shall be given to
the REPAIR of the DESIGNATED CABLE with the higher aggregate
number of ACCOUNTING UNITS in Schedules C1 and C2 taken
together. Where a DESIGNATED CABLE concerned forms part of a
branched cable system, the ACCOUNTING UNITS attributed to that
DESIGNATED CABLE for the purposes of this Paragraph shall be
the sum of the ACCOUNTING UNITS of the failed segment of the
DESIGNATED CABLE concerned and a proportion of the ACCOUNTING
UNITS of any other segments of the DESIGNATED CABLE forming
other parts of the same branched cable system in proportion to
the effect of the failed DESIGNATED CABLE on the
traffic-carrying capacity of said other DESIGNATED CABLES.
12.2 Subject to the overriding consideration of Article 12.1.,
priority for use of the SCARAB SYSTEMS shall be in the
following descending order:
12.2.1 Service interrupted in the buried sections of
DESIGNATED CABLES.
12.2.2 Service interrupted in the non-buried sections of
DESIGNATED CABLES.
12.2.3 Maintenance and Improvement work on DESIGNATED
CABLES.
12.2.4 OUTSIDE WORK as agreed by the OPERATING COMMITTEE.
12.3 If, while a SCARAB SYSTEM is committed to an operation, it is
required for an operation of higher priority, then the
MAINTENANCE AUTHORITY requiring the SCARAB SYSTEM on that
higher priority operation shall pay the transportation costs
of the SCARAB SYSTEM from its committed work site and back to
that work site, or to the PORT at the option of the
MAINTENANCE AUTHORITY of the lower priority operation.
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ARTICLE 13
ALLOCATION OF COSTS
13. SCARAB SYSTEM costs comprise:-
(i) STANDING CHARGES and
(ii) RUNNING COSTS.
as defined in Schedule D of this AGREEMENT.
ARTICLE 14
CAPITAL ADDITIONS AND COST ESCALATION
14.1 CAPITAL ADDITIONS in excess of an aggregated total in any
FINANCIAL YEAR of twenty-five thousand (25,000) Pounds
Sterling for each SCARAB SYSTEM shall not be included in the
calculation of STANDING CHARGES without the approval of the
OPERATING COMMITTEE.
14.2 Other than in the event of a designated OPERATOR failing to
comply with its contractual obligations or giving appropriate
notice of an intention to cease as OPERATOR, the respective
OWNERS may not change the OPERATOR, if such change is likely
to lead to a significant escalation in STANDING CHARGES or
RUNNING COSTS, without the approval of the OPERATING
COMMITTEE.
ARTICLE 15
ESTIMATED STANDING CHARGES AND RUNNING COSTS
15.1 Not later than two (2) months before the start of each
FINANCIAL YEAR, the OPERATORS and other OWNERS of each SCARAB
SYSTEM will provide the CENTRAL BILLING PARTY with SCARAB
SYSTEM cost estimates relating to the forthcoming FINANCIAL
YEAR in accordance with the relevant provisions of the SCARAB
OWNERS AGREEMENT.
15.2 Not later than one (1) month before the start of each
FINANCIAL YEAR, the CENTRAL BILLING PARTY shall, provide the
OPERATING COMMITTEE with:
15.2.1 the estimated STANDING CHARGE of each SCARAB
SYSTEM for the forthcoming FINANCIAL YEAR, in the
format defined in Schedule D.
15.2.2 the CAPITAL ADDITIONS included in the calculation
of Estimated
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STANDING CHARGES in accordance with the requirements
of Article 14.1.
15.2.3 the Estimated RUNNING COSTS of each SCARAB SYSTEM
appropriate to the forthcoming FINANCIAL YEAR, in the
format defined in Schedule D.
for the approval of the OPERATING COMMITTEE, which approval
shall not be unreasonably withheld.
15.3 When approved in accordance with the foregoing, the Estimated
STANDING CHARGES shall, in quarterly instalments based upon
the number of days in the quarter, form the basis of the
billing by the CENTRAL BILLING PARTY to the MAINTENANCE
AUTHORITIES during and in respect of the FINANCIAL YEAR. In
the event that the Estimated STANDING CHARGES or, if
applicable, the CAPITAL ADDITIONS included therein are not
approved by the OPERATING COMMITTEE, the Estimated STANDING
CHARGES shall form the basis of billing until the dispute is
resolved.
15.4 Not later than two (2) months after the approval of the
Estimated STANDING CHARGES for a FINANCIAL YEAR, the CENTRAL
BILLING PARTY shall provide the OPERATING COMMITTEE with
budgetary estimates of CAPITAL ADDITIONS and STANDING CHARGES
for the succeeding two (2) FINANCIAL YEARS.
15.5 In the event that during the course of a FINANCIAL YEAR the
CENTRAL BILLING PARTY determines that the STANDING CHARGES of
either SCARAB SYSTEM in that FINANCIAL YEAR will exceed the
approved Estimated STANDING CHARGES by more than ten (10)
percent, the CENTRAL BILLING PARTY shall provide the OPERATING
COMMITTEE with revised estimate of STANDING CHARGES for its
information.
ARTICLE 16
ALLOCATION OF STANDING CHARGES
16.1 The STANDING CHARGES of each SCARAB SYSTEM, adjusted as
appropriate pursuant to Articles 8.3 and 8.4., shall be
allocated to the ZONE to which it is assigned for the duration
of that assignment, and shall be shared among the MAINTENANCE
AUTHORITIES having direct responsibility for the DESIGNATED
CABLES in that ZONE in proportion to the ACCOUNTING UNITS
allocated to them in Schedule Cl or C2 as appropriate.
16.2 In the event that either SCARAB SYSTEM is transferred from its
assigned ZONE
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to the other ZONE in accordance with Article 8.6, one half of
the STANDING CHARGES applicable to the period of transfer
shall be borne by each ZONE.
16.3 For the purpose of calculating the STANDING CHARGES applicable
to any particular period of time, the annual STANDING CHARGES
shall be divided by 365 to give an appropriate daily rate.
16.4 Any additional amounts credited to this AGREEMENT in
accordance with Article 8.4 shall be shared among the
MAINTENANCE AUTHORITIES having direct responsibility for the
DESIGNATED CABLES in the ZONE to which the respective SCARAB
SYSTEM is assigned in proportion to the ACCOUNTING UNITS
allocated to them in Schedule Cl or C2 as appropriate.
ARTICLE 17
ALLOCATION OF RUNNING COSTS
17.1 The RUNNING COSTS of each SCARAB SYSTEM shall be allocated in
accordance with the following paragraphs of this Article 17
except where Article 8 provides otherwise.
17.2 If, pursuant to Article 12, a MAINTENANCE AUTHORITY is given
precedence in competing claims for the services of a SCARAB
SYSTEM, the MAINTENANCE AUTHORITIES concerned shall agree a
fair and reasonable apportionment of the RUNNING COSTS for the
Passage Time from the time of the commitment of mobilisation
of the SCARAB SYSTEM in its assigned PORT until the completion
of demobilisation upon its return to PORT. If the MAINTENANCE
AUTHORITIES concerned cannot agree, the OPERATING COMMITTEE
shall determine the apportionment. Whilst awaiting the
OPERATING COMMITTEE decision, the respective OPERATOR may, for
the purposes of interim billing, charge such RUNNING COSTS to
the MAINTENANCE AUTHORITY invoking the priority. Such interim
billing shall be adjusted upon receipt of the OPERATING
COMMITTEE's decision.
17.3 In the event that either SCARAB SYSTEM is transferred from its
assigned ZONE to the other ZONE in accordance with Article
8.6, the RUNNING COSTS and all associated transit costs shall
be charged to the MAINTENANCE AUTHORITY requesting the
transfer.
17.4 RUNNING COSTS in respect of SCARAB SYSTEM exercises and
training undertaken in accordance with Article 8.5 shall be
allocated to the ZONE to which the respective SCARAB SYSTEM is
assigned and shall be shared among the MAINTENANCE AUTHORITIES
having direct responsibility for the
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DESIGNATED CABLES in that ZONE in proportion to the ACCOUNTING
UNITS allocated to them in Schedule C1 or C2 as appropriate.
17.5 Should an operation be suspended due to the Host Vessel being
required to undertake other work (eg: an ACMA repair operation
not involving the SCARAB SYSTEM), the SCARAB SYSTEM operation
shall be deemed to have ended at the time of Host Vessel
diversion and from such time RUNNING COSTS shall be allocated
to the MAINTENANCE AUTHORITIES in the ZONE concerned in the
proportions of Schedule C1 or C2 as appropriate.
17.6 In the event that a SCARAB SYSTEM is used for a series of
operations without returning to its PORT, the MAINTENANCE
AUTHORITIES concerned may, if they wish, elect to share the
RUNNING COSTS during transit time on a basis different from
those outlined in Article 17.7. Any such election shall be
notified to the OPERATOR and CENTRAL BILLING PARTY as soon as
possible.
17.7 Where a SCARAB SYSTEM undertakes a series of operations
without returning to its PORT, each SCARAB SYSTEM'S RUNNING
COSTS shall be allocated pursuant to the provisions of the
paragraphs below. The RUNNING COSTS for transit time shall be
attributed separately to the several operations concerned
according to the procedure set out below. For this purpose,
transit time before work starts on the first operations,
transit time between the end of each operation and the start
of the next, and transit time from the end of the last in the
series of operations to the arrival of the SCARAB SYSTEM at
its PORT is aggregated to arrive at total transit time.
a) For the purposes of the following sub-paragraphs of
Article 17.7, references to an operation means all
work on the same cable including cut-ins and multiple
repairs. An operation ends when the SCARAB SYSTEM and
the Host Vessel have received permission from the
responsible MAINTENANCE AUTHORITY to leave the site
of the operation and have cleared the cable grounds.
b) the particular distance from the PORT of each
operation is hereinafter referred to as the
"operational distance."
c) The allocation of transit time to each operation is
that proportion of the total transit time which is
equal to the distance of each operation from the PORT
divided by the sum of all operational distances from
the PORT.
d) Weather delays which occur before work on a
particular operation starts, whether while actually
in transit or standing by on the cable ground, are
included in transit time.
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e) Weather delays which occur during the course of an
operation shall be charged to that particular
operation.
ARTICLE 18
BILLING ARRANGEMENTS
18.1 Bills showing the amounts due from the MAINTENANCE AUTHORITIES
for their respective shares of SCARAB SYSTEM costs for each
quarter shall be rendered to them by the CENTRAL BILLING PARTY
on or before the 20th day of the first month of each quarter.
Such bills shall be based on information received by the
CENTRAL BILLING PARTY under Paragraph 18.2 and on the approved
Estimated STANDING CHARGES and shall include:
(a) estimated STANDING CHARGES in respect of the quarter,
(b) a reduction of Estimated STANDING CHARGES in respect
of OUTSIDE WORK forecast for the quarter,
(c) adjustments in respect of previous quarters' actual
OUTSIDE WORK and/or Actual STANDING CHARGES,
(d) RUNNING COSTS, as incurred and advised to the CENTRAL
BILLING PARTY quarterly,
(e) interest, pursuant to Article 18.5, on bills not paid
when due, and
(f) CENTRAL BILLING PARTY charges in accordance with
Article 18.7.
18.2 On or before the fifteenth day of the last month preceding
each quarter, each OWNER shall advise the CENTRAL BILLING
PARTY as to the details of SCARAB SYSTEM activities (including
retrospective adjustments) and Running Costs, to be included
in the bills next due to be rendered to MAINTENANCE
AUTHORITIES. Such details shall be advised in the currency of
the OWNER.
18.3 For billing purposes, all such costs notified to the CENTRAL
BILLING PARTY shall be converted into the currency of the
CENTRAL BILLING PARTY at the exchange rates pertaining to
forward foreign exchange contracts which the CENTRAL BILLING
PARTY will enter into for the purchase of the amounts due to
each OWNER in its own currency on the first working day of the
third month of the quarter.
18.4 Bills shall be rendered in the currency of the CENTRAL BILLING
PARTY and
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shall be payable in that currency unless the CENTRAL BILLING
PARTY agrees otherwise.
18.5 Bills shall be payable by the last working day of the second
month of the quarter to which they relate, or if the issue of
a xxxx is delayed, seventy days from the date of issue,
whichever is the later. Bills not paid by the due date will
incur a quarterly compounded interest charge at a rate of one
hundred and twenty five (125%) percent of the *LIBOR
applicable on the first working day following the date by
which payment is due, which rate will be applied throughout
the period during which the payment is overdue.
*LIBOR is the London Interbank Offer Rate for Sterling as
published in the London Financial Times.
18.6 On the first working day of the third month of each quarter,
the CENTRAL BILLING PARTY shall remit to or settle with each
OWNER, in the OWNER's own currency, the amounts notified by it
under Article 18.2. Where appropriate, those amounts shall be
netted off against any amounts due from the OWNER in its
capacity as a MAINTENANCE AUTHORITY, such last-mentioned
amounts having been converted into the currency of the OWNER
concerned at rates prevailing at the time of settlement. Other
arrangements of a netting-off or similar nature are
permissible where agreed between the MAINTENANCE AUTHORITY or
MAINTENANCE AUTHORITIES concerned and the CENTRAL BILLING
PARTY. Such other arrangements will be reported upon annually
to the OPERATING COMMITTEE by the CENTRAL BILLING PARTY.
18.7 The CENTRAL BILLING PARTY shall charge the costs associated
with the performance of the Central Billing function. The
charges made shall be allocated equally between ZONES and
included in the quarterly bills to the MAINTENANCE AUTHORITIES
in proportion to the ACCOUNTING UNITS allocated to them in
Schedules Cl and C2.
18.8 The CENTRAL BILLING PARTY shall at all times use its best
efforts to ensure that all bills rendered to MAINTENANCE
AUTHORITIES are paid as due. If a xxxx for a DESIGNATED CABLE
remains unpaid for 180 days after the due date, the other
MAINTENANCE AUTHORITIES in the same ZONE as the defaulting
MAINTENANCE AUTHORITY shall reimburse the CENTRAL BILLING
PARTY a proportional share of the unpaid xxxx, including a
proportional share of the interest incurred by the CENTRAL
BILLING PARTY. The amounts paid by such MAINTENANCE
AUTHORITIES shall be in proportion to their ACCOUNTING UNITS
within the applicable ZONE.
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18.9 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 SCARAB SYSTEM costs in
proportion to the ACCOUNTING UNITS allocated to it in Schedule
C1 or C2, as appropriate, prepared pursuant to Article 7. If
the defaulting MAINTENANCE AUTHORITY fails to pay any xxxx
within 365 days of its due date, the owners shall be released
from any obligation to undertake work for that MAINTENANCE
AUTHORITY. At such time, the Appointed Party shall prepare and
issue a revised Schedule C which will exclude the defaulting
MAINTENANCE AUTHORITY. The defaulting MAINTENANCE AUTHORITY
will continue to be excluded from Schedule C until all
outstanding balances, including applicable interest, have been
paid in full by the defaulting MAINTENANCE AUTHORITY.
18.10 In the event that a MAINTENANCE AUTHORITY for a DESIGNATED
CABLE has failed to pay a xxxx within 180 days of the due
date, and that DESIGNATED CABLE has more than one MAINTENANCE
AUTHORITY (as shown in Schedule C), the CENTRAL BILLING PARTY
shall notify such other MAINTENANCE AUTHORITY(s) for that
cable of such default for nonpayment. Notwithstanding Article
18.9, a MAINTENANCE AUTHORITY for a DESIGNATED 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 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 xxxx and the cable involved shall not be excluded from
Schedule C. Such payment by another MAINTENANCE AUTHORITY on
behalf of a defaulting MAINTENANCE AUTHORITY shall not
prejudice the paying MAINTENANCE AUTHORITY'S legal rights
against the defaulting MAINTENANCE AUTHORITY.
18.11 Upon receipt by the CENTRAL BILLING PARTY from the defaulting
MAINTENANCE AUTHORITY or from another MAINTENANCE AUTHORITY
for a DESIGNATED CABLE having more than one MAINTENANCE
AUTHORITY (pursuant to Article 18.10) of any amount reimbursed
by the other MAINTENANCE AUTHORITIES in the ZONE in accordance
with Article 18.8, any such amounts shall be distributed to
such other MAINTENANCE AUTHORITIES in the ZONE in the same
proportions as those MAINTENANCE AUTHORITIES reimbursed the
CENTRAL BILLING PARTY under Article 18.8.
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ARTICLE 19
ACTUALS ADJUSTMENT
19.1 As soon as possible and not more than six (6) months after the
end of each FINANCIAL YEAR, each OWNER will advise the CENTRAL
BILLING PARTY (in the categories defined in Schedule D) of its
actual expenditure contributing towards STANDING CHARGES for
that FINANCIAL YEAR in accordance with the relevant provisions
of the SCARAB OWNERS AGREEMENT.
19.2 Not more than seven (7) months after the end of each FINANCIAL
YEAR, the CENTRAL BILLING PARTY shall provide the OPERATING
COMMITTEE with the Actual STANDING CHARGES for the FINANCIAL
YEAR concerned and make appropriate adjustments to amounts
billed under Article 18 on the basis of the corresponding
Estimated STANDING CHARGES. Such adjustments shall be
reflected to MAINTENANCE AUTHORITIES through the next
quarterly settlement.
ARTICLE 20
SCARAB SYSTEM COSTS IN PARTICULAR CIRCUMSTANCES
20.1 If a SCARAB SYSTEM is damaged to such an extent as to have to
undergo repairs, the MAINTENANCE AUTHORITIES shall continue to
share the STANDING CHARGES in the proportions of Schedule C1
or C2 as appropriate during a period of up to 120 days from
the date of the damage, unless, at the time of the damage, the
SCARAB SYSTEM was engaged in work under Article 8.4.
20.2 If the necessity of repair of a SCARAB SYSTEM results from the
deliberate act or negligence of a third party, the OWNERS
shall diligently pursue all claims against such third party,
but without prejudice to their right to settle or
compromise on terms which they consider reasonable. To the
extent that any sums recovered by way of damages or in
settlement of claims include the STANDING CHARGES paid by the
MAINTENANCE AUTHORITY during the repair period, that amount
shall be credited to the MAINTENANCE AUTHORITIES by the
OWNERS.
20.3 SCARAB SYSTEM costs shall cease to be shared among the
MAINTENANCE AUTHORITIES for periods during which a SCARAB
SYSTEM is unavailable in any of the following circumstances:
20.3.1 from the time that it becomes a total loss or a
constructive total loss, except to the extent
that the OWNERS are committed to expenses which
would normally be recovered in the STANDING
CHARGES or RUNNING COSTS but which are not
covered by insurance,
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20.3.2 during the period from the 120th day after damage to
a SCARAB SYSTEM has occurred, as specified in Article
20.1, until repairs have been completed and the
SCARAB SYSTEM is again available, or
20.3.3 during any period while the SCARAB SYSTEM is
performing work under Articles 8.3 and 8.4.
20.4 During periods of assignment to this AGREEMENT, SCARAB SYSTEM
costs shall continue to be shared among the MAINTENANCE
AUTHORITIES in the proportions of Schedule Cl or C2 as
appropriate for periods during which a SCARAB SYSTEM is
unavailable in any of the following circumstances:
20.4.1 while the SCARAB SYSTEM is undergoing emergency
repairs,
20.4.2 while the SCARAB SYSTEM is unavailable by reason of
FORCE MAJEURE.
ARTICLE 21
TOTAL LOSS OR CONSTRUCTIVE TOTAL LOSS
21.1 in the event of a total loss or constructive total loss of
either SCARAB SYSTEM, the remaining SCARAB SYSTEM shall assume
responsibility for the maintenance and repair of the
DESIGNATED CABLES in both ZONES and the Schedules C1 and C2
shall accordingly be combined to produce one Schedule C. Costs
shall be allocated among MAINTENANCE AUTHORITIES on the basis
of the now (combined) Schedule C from the date of such total
or constructive total loss (being retrospective if
applicable).
21.2 In the event of a total loss or constructive total loss of
both or the remaining SCARAB SYSTEM this AGREEMENT shall
terminate with effect from the date of such loss.
21.3 Notwithstanding Articles 21.1. and 21.2. each OPERATOR, as
applicable, may include any subsequent cost of terminating its
affairs as the OPERATOR as if such costs had been incurred on
the day of total loss or constructive total loss.
ARTICLE 22
KEEPING OF RECORDS
22. Each OPERATOR, other OWNER and the CENTRAL BILLING PARTY shall
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keep and maintain for a period of not less than five (5) years
from the date the applicable xxxx is rendered, copies of such
books, records, vouchers, accounts or other information
regarding its costs and calculations with respect to the xxxx
rendered, as may be appropriate to support the respective
billing or advice of any such costs to or by the CENTRAL
BILLING PARTY and shall at all reasonable times make them
available for the inspection of the other PARTIES.
ARTICLE 23
LIABILITY AND INDEMNITY
23.1 Each OWNER or OPERATOR shall be liable for all direct damages
to persons or property arising in the discharge of its
obligations under this AGREEMENT to the extent that such
damages have resulted from the intentional or negligent acts
or omissions of the OWNERS or OPERATOR, its agents or
employees. The OWNERS or OPERATOR shall indemnify and hold
harmless the MAINTENANCE AUTHORITY concerned against all
claims, actions, demands, or judgements for such direct
damages.
23.2 Each MAINTENANCE AUTHORITY shall be liable for all direct
damages to persons or property arising in the discharge of its
obligations under this AGREEMENT to the extent that such
damages have resulted from the intentional or negligent acts
or omissions of the MAINTENANCE AUTHORITY, its agents or
employees. The MAINTENANCE AUTHORITIES shall indemnify and
hold harmless the OWNERS and OPERATOR concerned against all
claims, actions, demands or judgements for such direct
damages.
23.3 Each OWNER or OPERATOR shall be liable for injury or damages
to persons or property sustained by its employees or agents in
the course of their employment or agency to the extent that
such injury or damages are not caused by the negligence or
intentional acts of a MAINTENANCE AUTHORITY and to that extent
will indemnify and hold harmless the MAINTENANCE AUTHORITY
against all claims, actions, demands, or judgement for damages
sustained by employees or agents of the OWNER or OPERATOR
except to the extent that such claims, actions, demands and
judgements arise out of the negligence or intentional acts of
a MAINTENANCE AUTHORITY.
23.4 The CENTRAL BILLING PARTY and the Appointed Party under
Article 7.1. shall each exercise due care, diligence and
promptness in the discharge of their respective duties and the
PARTIES jointly shall indemnify and hold harmless the CENTRAL
BILLING PARTY and the Appointed Party against any claims,
actions, demands or judgements arising out of the CENTRAL
BILLING PARTY'S andthe Appointed Party's performance,
purported performance or
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non-performance of its function under this AGREEMENT.
23.5 Except as stated in Articles 23.1., 23.2, 23.3 and 23.4, no
PARTY shall be liable for any other damages suffered by any
PARTY nor shall any PARTY be required to indemnify or hold
harmless any other PARTY against claims made by any person or
entity against any PARTY for damages arising from the acts or
omissions of any other PARTY in the discharge of their
respective obligations under this AGREEMENT.
ARTICLE 24
RELATIONSHIP AMONG THE PARTIES
24. 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 them, and the common
enterprise among the PARTIES shall be limited to the express
provisions of this AGREEMENT.
ARTICLE 25
PERFORMANCE OF AGREEMENT
25. The performance of this AGREEMENT by the PARTIES is contingent
upon the obtaining and continuance of such approvals,
consents, governmental authorisations, 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 their
best efforts to obtain and to have continued in effect such
approvals, consents, authorisations, licenses and permits.
ARTICLE 26
AMENDMENTS TO AGREEMENT
26. This AGREEMENT and any of the provisions hereof may be altered
or added to only by an agreement, in writing, signed by a duly
authorised person on behalf of each of the PARTIES.
ARTICLE 27
ASSIGNMENT OR TRANSFER
27. During the continuance of this AGREEMENT, no PARTY shall,
without the written consent of the other PARTIES, sell,
assign, transfer or dispose of its rights or obligations under
this AGREEMENT, in whole or in part, except to a legal
successor or subsidiary of such PARTY or corporation
controlling, or under the same control as, such PARTY. Nothing
contained in this AGREEMENT shall
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restrict the right of the OPERATORS to subcontract or employ
such personnel or agents as they deem appropriate to fulfil
their obligations hereunder.
ARTICLE 28
TERM OF THIS AGREEMENT
28.1 This AGREEMENT shall come into force in respect of each SCARAB
SYSTEM with effect from the OPERATIONAL DATE of each SCARAB
SYSTEM and subject to Article 21.2 shall terminate no sooner
than 31 March 1997. It shall continue thereafter unless any
PARTY serves at least one (1) years notice in writing to the
other PARTIES of its intention to withdraw from this
AGREEMENT. Such withdrawal shall not become effective until
the 31 March at least one (1) year following the date upon
which said notice is served and shall not in any case become
effective before 31 March 1997.
28.2 As soon as practicable and in any event not more than three
(3) months after the serving of any such notice of withdrawal,
the other PARTIES will decide if this AGREEMENT should
continue in force without the withdrawing PARTY or if this
AGREEMENT will be terminated upon the effective date of such
withdrawal.
28.3 In the event that the non-withdrawing PARTIES agree that this
AGREEMENT shall continue in force without the withdrawing
PARTY and prior to the effective date of such withdrawal, the
non-withdrawing PARTIES shall forthwith make appropriate
amendments to the Schedules to this AGREEMENT and it shall
continue to be effective as provided in Article 28.1. Should
such an agreement not be reached, the AGREEMENT shall
terminate upon the first effective date of any notice of
withdrawal served in accordance with Article 28.1.
ARTICLE 29
AGREEMENT BINDING ON SUCCESSORS
29. This AGREEMENT shall be binding an the PARTIES, their
respective successors, and permitted assigns.
ARTICLE 30
EXECUTION OF AGREEMENT
30. This AGREEMENT shall be executed in nine (9) counterparts in
the English language and nine (9) counterparts in the Spanish
language,, and each such
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counterpart shall be an original, and such counterparts shall
together, as well as separately constitute one and the same
AGREEMENT. If any differences in interpretation should arise
between the English and Spanish language versions of this
AGREEMENT or any amendment hereof, the English language
version shall be decisive.
ARTICLE 31
Testimonium
31. 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 duly authorised
respective officers.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
Date 1/29/90 By /s/ Name of Signatory
-----------------------------------------------
TRANSPACIFIC COMMUNICATIONS, INCORPORATED
Date 1/29/90 By /s/ Name of Signatory
-----------------------------------------------
BRITISH TELECOMMUNICATIONS plc.
Date 19/2/90 By /s/ Name of Signatory
-----------------------------------------------
BT(MARINE) LTD.
Date 16 Feb, 1990 By /s/ Name of Signatory
-----------------------------------------------
MINISTERE DES POSTES DES TELECOMMUNICATIONS
ET DE L'ESPACE.
Date 20 Feb, 1990 By /s/ Name of Signatory
-----------------------------------------------
-27-
TELEFONICA DE ESPANA
Date 28/2/90 By /s/ Name of Signatory
-----------------------------------------------
TELECOMUNICATIONS MARINAS SA
Date 28/2/90 By /s/ Name of Signatory
-----------------------------------------------
TELEGLOBE CANADA INC.
Date 2 Feb., 1990 By /s/ Name of Signatory
-----------------------------------------------
TELEGLOBE MARINE INC.
Date Feb 1, 1990 By /s/ Name of Signatory
-----------------------------------------------
- 29 -
