EXHIBIT 10.31
SEA-ME-WE 3
CONSTRUCTION AND MAINTENANCE
AGREEMENT
SIGNING ISSUE: 16 DECEMBER 1996
TABLE OF CONTENTS
PARAGRAPH PAGE
1. Definitions and Interpretations 6
2. SEA-ME-WE 3 Configuration 9
3. Management Committee and Subcommittees 10
4. Procurement Group 12
5. SEA-ME-WE 3 Segments 12
6. Provision, Construction and Ownership of Segments T and S 16
7. Use of Segment S7 -- Egyptian I and Segment 18
8. Use of Segment T 18
9. Definition of Segment S Capital Costs 20
10. Allocation and Billing of Segment S Capital Costs 21
11. Duties and Rights as to Operation and Maintenance of Segments 23
12. Allocation and Billing of Operation and Maintenance Costs of
Segment S 24
13. Keeping and Inspection of Books 25
14. Assignment and Use of Capacity 26
15. Expansion of Allocated Capacity 30
16. Capacity Routing 30
17. Increase or Decrease of Design Capacity 31
18. Obligation to Provide Transiting Facilities to Extend SEA-ME-WE 3
Capacity 32
19. Obligation to Connect SEA-ME-WE 3 with Inland Systems 32
20. Obtaining of Approval 32
21. Assignment of Rights and Obligations 33
PARAGRAPH PAGE
22. Xxxxxxx 00
00. Settlement of Claims by the Parties 34
24. Relationship and Liability of the Parties 34
25. Privileges for Documents or Communications 35
26. Confidentiality 35
27. Duration of Agreement and Realisation of Assets 36
28. Currency and Place of Payment 38
29. Waiver 38
30. Force Majeure 38
31. Settlement of Disputes and Interpretation of Agreement 38
32. Execution of Agreement 39
33. Alterations and Additions 39
34. Successors Bound 39
35. Severability 39
36. Compliance with Law 40
37. Notices 40
Testimonium 40
Annexes
Schedules
ANNEXES AND SCHEDULES
ANNEXES
Annex 1 -- SEA-ME-WE 3 Network Distances
Annex 2 -- SEA-ME-WE 3 Configuration
Annex 3 -- Progressive Incentive Pricing Scheme (PIPS)
Annex 4 -- Terms of Reference for Subcommittees, Procurement Group, Network
Administrator and the Central Billing Party
Annex 5 -- Source of Rates for Financial Charges
Annex 6 -- Integration of Tagide-2 into SEA-ME-WE 3
Annex 7 -- Segment S3 Arrangements
SCHEDULES
Schedule A -- Parties to the Agreement
Schedule B -- Voting Interests, Ownership of Segment S, Allocation of Capital
and Operation and Maintenance Costs of Segment S
Schedule C -- Interests in the Common Reserve Capacity
Schedule D -- Allocation of Capital, Operation and Maintenance Costs of
Segment T
Schedule E -- Summary of all Parties' MIU*km Capacity Allocation
Schedule F -- Parties' Allocated Capacity and Assigned Capacity in MIU's
Schedule G -- Initial Parties' Interests
Schedule H -- Summary of Pool Capacity
Schedule I -- Summary of Source of IRU Capacity
Schedule J -- Summary of IRU Purchasers' Capacity
Schedule K -- IRU Purchasers' Capacity in MIUs
SEA-ME-WE 3
CONSTRUCTION AND MAINTENANCE AGREEMENT
This Agreement is made and entered into on this 15th of January 1997, between
and among the Parties signatory hereto (hereinafter collectively called
"Parties" and individually called "Party"), which Parties are identified at
Schedule A attached hereto.
WITNESSETH
WHEREAS:
A. The Parties intend to co-operate to provide and maintain an optical fibre
cable system linking the Far East, South East Asia, the Indian
Subcontinent, the Middle East and Western Europe, (hereinafter called
"SEA-ME-WE 3"); and
B. KDD, TM, SINGTEL, INDOSAT, CAT, SLT, VSNL, ETISALAT, OPT, MOPTT, ARENTO,
TELECOM ITALIA, FT/FCR, BT, DTAG, AT&T and XXXX, have signed on the 13th of
December 1994 a "Memorandum of Understanding" (hereinafter called "MOU")
for carrying out a joint study for the implementation of a high capacity
fibre optic submarine cable system linking South East Asia, the Indian
Subcontinent, the Middle East and Western Europe; and
C. By the "First Supplement to the Memorandum of Understanding" effective on
the 3rd of November 1995, MARCONI, PTCL and TURK TELEKOM were admitted as
parties to the MOU; and
D. By the "Second Supplement to the Memorandum of Understanding" effective on
the 1st of March 1996, OTE was admitted as a party to the MOU; and
E. By the "Third Supplement to the Memorandum of Understanding" effective on
the 28th of May 1996, TELSTRA was admitted as a party to the MOU; and
F. By the "Fourth Supplement to the Memorandum of Understanding" effective on
the 26th of July 1996, GTO was admitted as a party to the MOU; and
G. KDD, KT, CT, ITDC, HKTI, CTM, PLDT, VNPT JTB, TM, SINGTEL, and MPT have
signed on the 11th of November 1996 a "Memorandum of Understanding No. 1 on
the Implementation of the SEA-ME-WE 3 Extension" (hereinafter called the
"MOU 1"), for carrying out the implementation of a high capacity fibre
optic submarine cable system linking their respective countries,
territories, or places as appropriate; and
H. By the "Fifth Supplement to the Memorandum of Understanding" effective on
the 26th of November 1996, ONPT was admitted as a Party to the MOU, and
SLTL was recognised as the legal successor to SLT; and
I. By the "Sixth Supplement to the Memorandum of Understanding" effective on
the 27th of November 1996. Belgacom was admitted as a Party to the MOU; and
J. By the "Additional Memorandum of Understanding" effective on the 27th of
November 1996, CYTA were admitted as a Party to the MOU; and
K. By the "Memorandum of Understanding on the Integration of the SEA-ME-WE 3
Cable and the SEA-ME-WE 3 Extension", effective on the 27th of November
1996, the parties to the MOU and the parties to the MOU-1 agreed to
integrate their respective cable projects into a single cable project.
L. The Parties now desire to define the terms and conditions upon which
SEA-ME-WE 3 shall be engineered, provided, constructed, operated and
maintained;
Now therefore, it is hereby agreed by and between the Parties as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 The following definitions shall apply to certain terms used in this
Agreement:
Accounting Practice:
An accounting practice which meets international standards or requirements
laid down by applicable laws and professional organisations appropriate to
a Party.
Agreement:
This SEA-ME-WE 3 Construction and Maintenance Agreement.
Basic System Payload Module:
A Virtual Container 4 (VC4) in accordance with ITU-T Recommendation G.707.
Bit Sequence Independence:
The property of a binary transmission channel, telecommunications circuit
or connection, that permits all sequences of binary signal elements to be
conveyed over it at its specified bit rate, without change to the value of
any signal elements, in accordance with ITU-T Recommendation G.701,
Paragraph 2.
Branching Unit:
Equipment that permits interconnection between 3 cable sections and
provides the optical fibre and power conductor between 3 cable sections.
Cable Landing Point:
The beach joint, or the mean low water xxxx of ordinary spring tides if
there is no beach joint.
Cable System Interface:
The nominal STM-1 digital optical or electrical input/output ports on the
digital/optical distribution frame (excluding the digital/optical or
electrical distribution frame itself) where the Basic System Payload Module
connects with other transmission facilities or equipment.
Capacity:
Capacity shall be categorised as follows, (with items (ii), (iii), (iv),
(v) and (vi) expressed in terms of MIU*kilometre)
(i) Design Capacity: The capacity of Segment S of SEA-ME-WE 3 provided
under the Supply Contract.
(ii) Allocated Capacity: Capacity which is allocated to a Party in return
for its financial investment, and which comprises the Assigned
Capacity, Reserve Capacity and Pool Capacity.
(iii)Assigned Capacity: Capacity which is assigned to a Party in specific
Paths of SEA-ME-WE 3.
(iv) Reserve Capacity: Capacity acquired by a Party on an unmatched basis
for its intended future assignments.
(v) Pool Capacity: Capacity acquired by a Party on an unmatched basis for
transfer on an Indefeasible Right of Use (IRU) basis, and the
collective sum of such capacity acquired by each Party.
(vi) Priority Pool Capacity: Pool Capacity which has priority in meeting
SEA-ME-WE 3 IRU sales between Sesimbra and Penmarch until the 31st of
December 2000, as detailed in Annex 6.
(vii)Common Reserve Capacity (CRC): Capacity in excess of the Allocated
Capacity, which is not allocated to any specific Party.
(viii) Restoration Capacity: Capacity within the Common Reserve Capacity
made available for in-system restoration and the restoration of other
systems.
(ix) SEA-ME-WE 3 IRU: Capacity purchased in SEA-ME-WE 3 on an Indefeasible
Right of Use (IRU) basis.
Carriers:
All of the Parties to this Agreement, except XXXX, and international
telecommunications entities not Parties hereto authorised or permitted
under the laws of its respective country, territory or place to acquire and
use cable capacity on an IRU basis pursuant to Paragraph 14.
Existing Carriers:
International telecommunications entities which were authorised or
permitted under the laws of their respective countries, territories or
places on or before the 1st of September 1996 to acquire and use capacity
on an IRU basis.
Initial Parties:
Means KDD, KT, CT, ITDC, HKTI, CTM, PLDT, VNPT, JTB, TM, SINGTEL, INDOSAT,
TELSTRA, CAT, MPT, SLTL, VSNL, PTCL, GTO, ETISALAT, OPT, MOPTT, ARENTO,
CYTA, TURK TELEKOM, OTE, TELECOM ITALIA, ONPT, MARCONI, FT/FCR, BT,
BELGACOM, DTAG, AT&T, and XXXX.
Interconnection Equipment:
The equipment in each terminal station interconnecting Segments S1, S2, S3,
S4, S5, S6, S7, S8, S9, and S10, one with another, as appropriate, and to
the Cable System Interface.
MIU: A unit of capacity mapped onto a VC12 with effective usage of 2.048 Mbit/s
in each direction. A maximum of 63 MIU may be carried in one (1) Basic
System Payload Module.
MIU*kilometre or MIU*km
A unit of capacity in SEA-ME-WE 3 which shall consist of two one-half
interests in a MIU multiplied by one (1) kilometre of the Network Distance.
Network Distance:
The virtual distance of each Path of SEA-ME-WE 3 in kilometres, which is
specified in Annex 1 of this Agreement.
Paid
Meaning that the funds referred to are available for immediate use by the
recipient, or the Central Billing Party as appropriate.
Path:The connectivity in SEA-ME-WE 3 between any two Cable System Interfaces,
independent of the actual physical links used to connect these Cable System
Interfaces.
Path Assignment:
An allocation of capacity to a Party or two Parties on a specific Path in
SEA-ME-WE 3.
Ready for Service Date:
The Ready For Service Date, hereinafter called "RFS Date", shall be
considered as the date at which the Parties agree to place the entire
SEA-ME-WE 3 into operation for customer service and shall be on or before
the 30th of March 1999, or such other date as may be agreed by the
Management Committee.
Ready For Provisional Acceptance Date:
The date on which Segment S of SEA-ME-WE 3 is accepted by the Procurement
Group on behalf of the Parties. The Ready for Provisional Acceptance Date
(hereinafter called "RFPA Date") shall be on or before 1st of December 1998
with the exception of Segment S1 and S2, which shall be on or before 1st of
March 1999 and Segment S7 which shall be on or before 1st of July 1998) or
such other dates as may be agreed upon by the Management Committee.
Segment Ready For Service Date:
The Segment Ready For Service Date, hereinafter called the "Segment RFS
Date", shall be on or before 31st of December 1998 for Segments S3 - S10,
and on or before 30th March 1999 for Segments S1 and S2 or such other date
as may be agreed upon by the Management Committee.
Supply Contract
The contracts placed by the Procurement Group on behalf of the Parties for
the supply of Segment S of SEA-ME-WE 3.
Tagide-2 Parties:
Means PTA, BELGACOM, TELEGLOBE, TD, FINNET, TFIN, FT/FCR, DTAG, OTF, BTE,
LPTT, TELENOR, MARCONI, ROSTEL, TSA, TELIA, SWISST, MCL, AT&T, XXXX, SPRINT
and MCII.
Terminal Parties:
Means KDD, KT, CT, ITDC, HKTI, CTM, PLDT, VNPT, JTB, TM, SINGTEL, INDOSAT,
TELSTRA, CAT, MPT, SLTL, VSNL, PTCL, GTO, ETISALAT, OPT, MOPTT, ARENTO,
CYTA, TURK TELEKOM, OTE, TELECOM ITALIA, ONPT, MARCONI, FT/FCR, BT,
BELGACOM and DTAG.
1.2 Schedules and Annexes
The Schedules and Annexes to this Agreement, and any written amendments
thereto or any Schedules or Annexes substituted therefore, shall form part
of this Agreement, and any Paragraph which contains a reference to a
Schedule or Annex shall be read as if the Schedule or Annex was set out at
length in the body of the Paragraph itself. In the event that there is any
conflict between the terms and conditions of this Agreement and the
Schedules and Annexes to this Agreement, the terms and conditions of this
Agreement shall prevail.
1.3 Headings
The headings in this Agreement are inserted for convenience only and shall
be ignored in construing this Agreement.
1.4 Entire Agreement
This Agreement represents the entire understanding and agreement between
the Parties in relation to the matters dealt with herein, and supersedes
all previous representations, understandings and agreements, whether oral
or written, relating thereto.
1.5 Interpretation
Where the sense requires, words denoting the singular only shall also
include the plural and vice versa. References to persons shall include
firms and companies and vice versa. Reference to the male shall include the
female.
2. SEA-ME-WE 3 CONFIGURATION
2.1 The configuration of SEA-ME-WE 3 shall be as shown in Annex 2.
2.2 The planning and development of SEA-ME-WE 3 shall be suitable for
implementation of SEA-ME-WE 3 at the RFS Date defined in Paragraph 1, using
the appropriate transmission rate in the synchronous digital hierarchy to
meet the capacity requirements of the Parties.
2.3 In accordance with the arrangements contained in Annex 6, the Tagide-2 and
SEA-ME-WE 3 Parties agree to integrate the Tagide-2 cable system into
SEA-ME-WE 3.
3. MANAGEMENT COMMITTEE AND SUBCOMMITTEES
3.1 The Parties shall hereby establish a committee (hereinafter called the
"Management Committee"), for the purpose of directing the progress of the
engineering, provision, installation, bringing into service and continued
operation of SEA-ME-WE 3. Except as otherwise stated in this Agreement,
(which exception shall include decisions on procurement which shall be made
by the Procurement Group in accordance with their Terms of Reference as
contained in Annex 4 hereto), the Management Committee shall make all
decisions necessary on behalf of the Parties to effectuate the purposes of
this Agreement -- shall provide the Chairman of the Management Committee.
3.2 The Management Committee shall consist of a Chairman and one representative
from each of the Parties to this Agreement. The Chairman may appoint one
secretary to assist him. Two or more Parties may designate the same person
to serve as their representative at specific meetings of the Management
Committee and its subcommittees (established pursuant to Paragraph 3.10 of
this Agreement). The Management Committee shall meet on the call of the
Chairman or whenever requested by one or more Parties together representing
at least five per cent (5%) of the total voting interests specified in
Schedule B. The Chairman shall give the Parties at least thirty (30) days'
advance notice of each meeting, together with a copy of the draft agenda.
Such notice period may be reduced if Parties representing at least
seventy-five per cent (75%) of the total voting interests are in agreement.
Documents for discussion at the meeting should be made available to the
Parties at least fourteen (14) days before the meeting, but the Management
Committee may agree to discuss papers distributed on less than fourteen
(14) days' notice, with the consent of all the Parties.
3.3 Meetings of the Management Committee shall be considered to have a quorum
if the sum of the votes which the attending Parties hold or represent is
equal to at least sixty six per cent (66%) of the total voting interests,
as specified in Schedule B.
3.4 All decisions made by the Management Committee shall be subject, in the
first place, to consultation among the Parties, which shall make every
reasonable effort to reach agreement with respect to matters to be decided.
However, in the event agreement cannot be reached, the decision shall be
carried on the basis of a vote. The vote shall be carried by a majority
(more than 50%) of the total percentage voting interest specified in
Schedule B unless otherwise stated in this Agreement. A member of the
Management Committee representing more than one Party shall separately cast
the vote to which each Party he represents is entitled.
3.5 Any Party not represented at a Management Committee meeting, but entitled
to vote, may vote on any matter on the agenda of such a meeting by either
appointing a proxy in writing or giving notice of such vote to the Chairman
prior to the submission of such matters for vote at such meetings.
3.6 If, following the call for a Management Committee meeting, the Chairman has
not received confirmation of attendance by the Parties such that a quorum
for a Management Committee shall be achieved, he shall, within ten (10)
days after the scheduled meeting, send out invitations to all Parties for a
new meeting with the same working agenda, indicating the circumstances for
re-scheduling the meeting. In such cases, no quorum shall be required and,
notwithstanding paragraph 3.4, any vote shall be carried by a majority
(more than 50%) of the voting interests cast
3.7 If the Management Committee Chairman deems it appropriate, he may require
the Parties to determine by correspondence any proposal received from one
of the Parties which could validly be determined at a meeting of the
Management Committee if duly held for that purpose. If such procedure is
required as aforesaid, or if at any time the Parties agree to adopt such
procedure, each Party entitled to vote shall cast its vote within fourteen
(14) days after the proposal is issued by the Management Committee
Chairman. In the case where the Parties are required to vote on and
determine any proposal where the matter presented for consideration by its
nature requires determination in less than fourteen (14) days, and such
fact and lesser period are so stated in the notice submitting the proposal,
the Parties shall cast their votes by letter, facsimile or telex within
such lesser period, which shall not be less than five (5) days after the
proposal is issued.
3.8 The Management Committee Chairman shall give prompt notice of the results
of any such voting to the Parties and any decision so taken shall be
binding on the Parties.
3.9 No decision of the Management Committee, its subcommittees, or any other
groups established by the Management Committee shall override any
provisions of this Agreement or in any way diminish the rights of, or
prejudice the interests granted to, any Party under this Agreement.
3.10 To aid the Management Committee in the performance of its duties, the
following subcommittees shall be formed. These subcommittees shall comprise
a representative of each Party, under the direction of the Management
Committee, and shall be responsible for their respective areas of interest
listed in Annex 4 and any other areas of interest designated by the
Management Committee.
(i) Capacity Assignment, Routing and Restoration Subcommittee (hereinafter
called "AR&RSC"),** shall provide the Chairman of the AR&RSC.
(ii) Operation and Maintenance Subcommittee (hereinafter called "O&MSC"),**
shall provide the Chairman of the O&MSC.
(iii)Financial and Administrative Subcommittee (hereinafter called
"F&ASC"),** shall provide the Chairman of the F&ASC.
Each of the above subcommittees may, at their discretion, establish other
subordinate groups, who will report directly to the relevant subcommittee,
to assist them in the performance of their responsibilities.
3.11 The Management Committee may establish such other subcommittees or groups
as it shall determine at its discretion to provide assistance in the
performance of its responsibilities. The Chairman of such subcommittees
shall be provided from the Terminal Parties.
3.12 The subcommittees shall meet as required, and at least once annually
between the effective date of this Agreement and the RES Date. Meetings of
a subcommittee may be called to consider specific questions at the
discretion of its Chairman, or whenever requested by one or more Parties
representing at least five per cent (5%) of the total voting interests
specified in Schedule B. The respective Chairman of each subcommittee, or a
designated representative of each subcommittee, shall attend the
Management Committee meetings and meetings of each other subcommittee in an
advisory capacity as necessary. After the RFS Date, the Management
Committee shall determine whether any of its subcommittees should remain in
existence. If the Management Committee determines that one or more of its
subcommittees shall not remain in existence, the responsibilities assigned
to a subcommittee whose existence has been terminated shall revert to the
Management Committee.
4. PROCUREMENT GROUP
4.1 A Procurement Group shall also be established under the direction of the
Management Committee, comprising representatives from the Terminal Parties.
This group shall act as an agent for the Parties and be solely responsible,
on a joint but not several basis, for all actions as may be required by the
Management Committee to execute the Supply Contract(s) with the supplier to
provide Segment S of SEA-ME-WE 3. The Procurement Group may, at its
discretion, establish other sub-ordinate groups, who will report directly
to the Procurement Group, to assist it in the performance of its
responsibilities.
4.2 Notwithstanding Paragraph 4.1, the MOU signatories shall continue to be
responsible, until the signing of the Supply Contract for Segments S3 - S10
of SEA-ME-WE 3, for the adjudication of tenders and the contract
negotiations leading to the execution of the Supply Contract for Segments
S3 - S10 of SEA-ME-WE 3.
4.3 Notwithstanding Paragraph 4.1, the MOU-1 signatories shall continue to be
responsible, until the signing of the Supply Contract for Segments S1 and
S2 of SEA-ME-WE 3, for the adjudication of tenders and the contract
negotiations leading to the execution of the Supply Contract for Segments
S1 and S2 of SEA-ME-WE 3.
4.4 In the performance of the activities referred to in Paragraphs 4.2 and 4.3,
the signatories of the MOU and MOU-1 will liaise closely with the
Procurement Group established under this Agreement to ensure the effective
integration of Segments S3 - S10 with Segments S1 and S2.
4.5 The Procurement Group shall have terms of reference contained in Annex 4.
4.6 The Procurement Group shall undertake the ongoing tasks of co-ordinating
and managing the overall project during the engineering, provision and
construction of SEA-ME-WE 3.
4.7 The Procurement Group shall continue to function until the Supply Contract
is complete, unless otherwise determined by the Management Committee.
4.8 The Chairman of the Procurement Group shall attend Management Committee
meetings and subcommittee meetings in an advisory capacity as necessary.
5. SEA-ME-WE 3 SEGMENTS
5.1 In accordance with the arrangements contained in this Agreement, SEA-ME-WE
3 shall be engineered, provided, constructed, maintained and operated
between a terminal station at Okinawa, a terminal station at Keoje,
terminal stations at Shanghai and Shantou, terminal stations at Toucheng
and Fangshan, a terminal station at Deep Water Bay, a terminal station at
Taipa, a terminal station at Batangas, a terminal station at Danang, a
terminal station at Tungku, a terminal station at Mersing, a terminal
station at Tuas, a terminal station at Jakarta, a terminal station at
Perth, a terminal station at Medan, a terminal station at Penang, a
terminal station at Satun, a terminal station at Pyapon, a terminal station
at Mount Lavinia, terminal stations at Cochin and Mumbai, a terminal
station at Karachi, a terminal station at Muscat, a terminal station at
Fujairah, a terminal station at Djibouti, a terminal station at Jeddah,
terminal stations at Suez and Alexandria, a terminal station at Yeroskipos,
a terminal station at Marmaris, a terminal station at Chania, a terminal
station at Mazara Del Xxxxx, a terminal station at Tetuan, a terminal
station at Sosimbra, a terminal station at Penmarch, a terminal station at
Goonhilly, a terminal station at Oostende and a terminal station at Norden.
For the purposes of this Agreement, SEA-ME-WE 3 shall be regarded as
consisting of Segments T and 9.
5.2 Segment T shall comprise the following segments:
SEGMENT T1: The terrestial segment at Okinawa (KDD),
SEGMENT T2: The terrestial segment at Keoje (KT),
SEGMENT T3: The terrestial segment at Shanghai (CT),
SEGMENT T4: The terrestial segment at Toucheng (ITDC),
SEGMENT T5: The terrestial segment at Fangshan (ITDC),
SEGMENT T6: The terrestial segment at Shantou (CT),
SEGMENT T7: The terrestial segment at Deep Water Bay (HKTI),
SEGMENT T8: The terrestial segment at Taipa (CTM),
SEGMENT T9: The terrestial segment at Batangas (PLDT),
SEGMENT T10: The terrestial segment at Danang (VNPT),
SEGMENT T11: The terrestial segment at Tungku (JTB),
SEGMENT T12: The terrestial segment at Mersing (TM),
SEGMENT T13: The terrestial segment at Tuas (SINGTEL),
SEGMENT T14: The terrestial segment at Jakarta (INDOSAT),
SEGMENT T15: The terrestial segment at Perth (TELSTRA),
SEGMENT T16: The terrestial segment at Medan (INDOSAT),
SEGMENT T17: The terrestial segment at Penang (TM),
SEGMENT T18: The terrestial segment at Satun (CAT),
SEGMENT T19: The terrestial segment at Pyapon (MPT),
SEGMENT T20: The terrestial segment at Mount Lavinia (SLTL),
SEGMENT T21: The terrestial segment at Cochin (VNSL),
SEGMENT T22: The terrestial segment at Mumbai (VNSL),
SEGMENT T23: The terrestial segment at Karachi (PTCL),
SEGMENT T24: The terrestial segment at Muscat (GTO),
SEGMENT T25: The terrestial segment at Fujairah (ETISALAT),
SEGMENT T26: The terrestial segment at Djibouti (OPT),
SEGMENT T27: The terrestial segment at Jeddah (MOPTT),
SEGMENT T28: The terrestial segment at Suez (ARENTO),
SEGMENT T29: The terrestial segment at Alexandria (ARENTO),
SEGMENT T30: The terrestial segment at Yeroskipos (CYTA),
SEGMENT T31: The terrestial segment at Marmaris (TURK TELEKOM),
SEGMENT T32: The terrestial segment at Chania (OTE),
SEGMENT T33: The terrestial segment at Mazara Del Xxxxx (TELECOM ITALIA),
SEGMENT T34: The terrestial segment at Tetuan (ONPT),
SEGMENT T35: The terrestial segment at Sesimbra (MARCONI),
SEGMENT T36: The terrestial segment at Penmarch (FT),
SEGMENT T37: The terrestial segment at Goonhilly (BT),
SEGMENT T38: The terrestial segment at Oostende (BELGACOM),
SEGMENT T39: The terrestial segment at Norden (DTAG),
Xxxxxxxx X0, X0, X0, X0, X0, X0, X0, X0, X0. T10, T11, T12, T13, T14, T15,
T16, T17, T18, T9, T20, T21, T22, T23, T24, T25, T26, T27, T28, T29, T30,
T31, T32, T33, T34, T35, T36, T37, T38 and T39 shall each consist of an
appropriate share of the land, civil works and buildings at the specified
locations for the cable landing, the terminal station and the cable
rights-of-way and ducts between between a terminal station and its
respective Cable Landing Point, and an appropriate share of common services
and equipment, including any multiplex equipment necessary to operate and
interface between the SEA-ME-WE 3 Cable System Interface and the nominal
2Mbit/s operating point, solely and directly associated with Assigned
Capacity connecting with SEA-ME-WE 3.
5.3 Segment S shall consist of the whole of the submarine cable system provided
between the Cable System Interfaces at the terminal stations at Okinawa,
Keoje, Shanghai, Toucheng, Fangshan, Shantou, Deep Water Bay, Taipa,
Batangas, Danang, Tungku, Mersing, Tuas, Jakarta, Perth, Medan, Penang,
Satun, Pyapon, Mount Lavinia, Cochin, Mumbai, Karachi, Muscat, Fujairah,
Djibouti, Jeddah, Suez, Alexandria, Yeroskipos, Marmaris, Chania, Mazara
Del Vallo, Tetuan, Sesimbra, Penmarch, Goonhilly, Oostende and Norden. All
cable links within Segment S shall contain at least two fibre pairs.
SEA-ME-WE 3 can be considered as a main trunk linking Germany, the UK,
France, Portugal, Egypt, Djibouti, India, Singapore, Australia and Japan,
with connection to the other terminal stations being achieved through
Branching Units which exploit the wavelength division multiplexing
capability of the system. The main trunk shall contain at least 2 fibre
pairs and each fibre pair shall be capable of operating at a minimum of
10Gbit/s, providing a minimum of 64 Basic System Payload Modules in each
fibre pair. For the purposes of this Agreement, Segment S shall be regarded
as consisting of the following Segments;
SEGMENT S1
That part of Segment S between the Cable System Interfaces in terminal
stations at Okinawa, Keoje, Shanghai, Toucheng, Fangshan, and Shantou.
SEGMENT S2
That part of Segment S between the Cable System Interfaces in terminal
stations at Shantou, Deep Water Bay, Taipa, Batangas, Danang, Tungku,
Mersing and Tuas.
SEGMENT S3
That part of Segment S between Tuas, Jakarta and Perth.
SEGMENT S4
That part of Segment S between Tuas, Medan, Ponang, Satun, Pyapon,
Mount Lavinia, Cochin and Mumbai.
SEGMENT S5
That part of Segment S between the Cable System Interfaces in the
terminal stations at Mumbai, Karachi, Muscat, Fjairah, and Djibouti.
SEGMENT S6
That part of Segment S between the Cable System Interfaces in the
terminal stations at Djibouti, Jeddah and Suez.
SEGMENT S7
That part of Segment S between the Cable System Interfaces in Suez and
Alexandria. Segment S7 shall consist of dedicated fibre pairs in two
different buried terrestrial cables laid across Egypt on two different
and separate routes, each providing sufficient capacity to accommodate
the whole system capacity required between Suez and Alexandria.
Segment S7 shall include:
(i) two diverse transmission cables equipped with appropriate repeaters,
route switching equipment, joint housings and, if required, any
intermediate transmission and power equipment between Suez terminal
station and Alexandria terminal station.
(ii) any interconnection Equipment which shall groom all payload virtual
containers within SEA-ME-WE 3 as required and approved by the
Management Committee, in order to meet the internal connectivity
requirements of SEA-ME-WE 3.
SEGMENT S8
That part of Segment S between the Cable System Interfaces in the
terminal stations at Alexandria, Yeroskipos, Marmaris, Chania, Mazara
Del Xxxxx, Tetuan and Sosimbra.
SEGMENT S9
That part of Segment S between the Cable System Interfaces in the
terminal stations at Sesimbra and Penmarch.
SEGMENT S10
That part of Segment S between the Cable System Interfaces in the
terminal stations at Penmarch, Goonhilly, Oostende and Norden.
5.4 Segments S1, S2, S3, S4, S5, S6, S8, S9 and S10 shall each include:
(i) all transmission, power feeding, system management and special test
equipment directly associated with the submersible plant, located in
their respective terminal stations, and including the Cable System
Interfaces;
(ii) the transmission cable equipped with appropriate repeaters, Branching
Units and joint housings between a terminal station and another
terminal station.
(iii)the sea earth cable and electrode system or the land earth system, or
an appropriate share thereof, associated with the terminal power
feeding equipment at the respective terminal station.
(iv) the Interconnection Equipment which shall groom all payload virtual
containers within SEA-MI-WE 3 as required and approved by the ???
Committee in order to meet the internal connectivity requirements of
SEA-ME-WE 3.
6. PROVISION, CONSTRUCTION AND OWNERSHIP OF SEGMENTS AND S
6.1 The following Parties shall own, provide and agree to act as the Terminal
party for the following Segments;
SEGMENT PARTY
T1 KDD
T2 KT
T3 CT
T4 and T5 ITDC
T6 CT
T7 HKTI
T8 CTM
T9 PLDT
T10 VNPT
T11 JTB
T12 and T17 TM
T13 SINGTEL
T14 and T16 INDOSAT
T15 TELSTRA
T18 CAT
T19 MPT
T20 SLTL
T21 and T22 VSNL
T23 PTCL
T24 GTO
T25 ETISALAT
T26 OPT
T27 MOPTT
T28 and T29 ARENTO
T30 CYTA
T31 TURK
TELEKOM
T32 OTE
T33 TELECOM
ITALIA
T34 ONPT
T35 MARCONI
T36 FT
T37 BT
T38 BELGACOM
T39 DTAG
6.2 The Terminal Parties shall make available to the other Parties hereto any
reasonable information requested by any Party relating to the engineering,
provision,
construction, or installation of Segment T. The various Segments of Segment
T shall be provided in sufficient time to permit SEA-ME-WE 3 to be placed
into operation by the Segment RFS Date of the Segment S to which it
connects.
6.3 Ownership of Segment S and voting interests shall be based upon the
financial investment of each Party, as shown in Schedule B to this
Agreement, and in accordance with Annex 7. Segment S of SEA-ME-WE 3 shall
be owned by the Parties in common and undivided shares, apart from Segment
S7, which shall be owned solely by Arento, and Segment S3, which shall be
owned in accordance with Annex 7.
6.4 The provision of Segment S shall be through a Supply Contract to be placed
by the Procurement Group with suppliers, subject to approval by the
Management Committee. The provision of Segment S9 shall be as detailed at
Annex 6.
6.5 Each of the Parties shall be entitled, on request and at its own expense,
to receive from the Procurement Group a copy of the Supply Contract,
subject to the acceptance by each such Party of any reasonable conditions
of confidentiality imposed by the Supply Contract.
6.6 The Procurement Group shall ensure that the Supply Contract specifies that
Segment S is to be provided by the required RFPA Date.
6.7 The Procurement Group shall ensure that the Supply Contract shall afford
them, or their designated representatives, reasonable rights of access to
examine, test, and inspect the SEA-ME-WE 3 cable equipment, material,
supplies and installation activities.
6.8 In the event that Segment S fails to meet the specifications referred to in
the Supply Contract for its provision, fails to provide the specified
capacity, or is not engineered, provided, installed and ready in sufficient
time to meet the RFPA Date as specified in the Supply Contract, or if the
supplier is otherwise in material breach of the Supply Contract, the
Procurement Group, as an agent of the Parties to this Agreement, may,
pursuant to this Paragraph 6 and in accordance with the Supply Contract,
take such actions as may be necessary to exercise the rights and remedies
available under the terms and conditions of the Supply Contract. Such
actions by the Procurement Group shall be subject to any direction deemed
necessary by the Management Committee.
6.9 The members of the Procurement Group shall not be liable to any other Party
for any loss or damage sustained by reason of a supplier's failure to
perform in accordance with the terms and conditions of its Supply Contract,
or as a result of SEA-ME-WE 3 not meeting the RFPA Date as specified in the
Supply contract, or if SEA-ME-WE 3 does not perform in accordance with the
technical specifications and other requirements of the Supply Contract, or
if SEA-ME-WE 3 is not integrated or placed into operation. The Parties
recognise that the Procurement Group does not guarantee or warrant;
(i) the performance of the Supply Contract by the supplier,
(ii) the performance or reliability of Segment S, or
(iii) that SEA-ME-WE 3 shall be integrated or placed into operation
8.4 In determining the operation and maintenance cost or the Terminal Station
Right on Use, the Terminal Parties have taken into account an estimate of
costs reasonably incurred in operating and maintaining the facilities
involved, including, but not limitedto, the cost of attendance, testing,
adjustments, repairs and replacements, customs duties, taxes (except income
tax as imposed upon the net income of a Party) paid in respect of such
facilities, billing activities, administrative costs, appropriate financial
charges, and costs and expenses reasonably incurred on account of claims
made by or
Page 18 of 40
against other persons in respect of such facilities or any part thereof,
and damages or compensation payable by the terminal station owner on
account of such claims, costs, expenses, damages, or compensation payable
to or by the terminal station owner on account of claims made against other
persons.
8.5 Where the use of a terminal station or of certain equipment situated
therein, such as power supply or testing and maintenance equipment, is
shared by SEA-ME-WE 3 and other communications systems terminating at that
terminal station, the Terminal Station Right of Use capital and operating
and maintenance charges shall reflect such sharing arrangements.
8.6 In the event that an agreement for another cable system utilising any
terminal station of SEA-ME-WE 3 is terminated prior to the termination of
this Agreement, the owner of the terminal station in question shall ensure
that the terminal station shall be available for SEA-ME-WE 3 for the
duration of this Agreement on fair and equitable terms. If the terminal
station in question is not available for the landing and terminating of
SEA-ME-WE 3 for any reason, the relevant owner, with the agreement of the
Patrics hereto, shall take all necessary measures to ensure that another
appropriate terminal station in the country of that owner shall be
available for SEA-ME-WE 3 for the duration of this Agreement on terms and
conditions similar to those contained in this Agreement.
8.7 The F&ASC shall establish, for approval by the Management Committee, the
billing and payment procedures for payments due in accordance with this
Paragraph 8. Such procedures shall specifically establish the billing and
payment procedures to reflect changes to Parties' categorisation of
capacity and any associated modification to Schedule D. Such procedures
shall ensure that financial adjustments required due to a modification of
Schedule D shall take place no more frequently than once a year.
8.8 Payments due under this Paragraph 8 shall be made in accordance with the
following principles:
(i) On the RFPA Date, or as soon after as practicable, the Terminal
Parties xxxx the Parties for the capital cost of the Terminal Station
Right of Use.
(ii) The Parties shall be billed individually by the Terminal Parties, as
appropriate, for the Terminal Station Right of Use operation and
maintenance costs.
(iii)The billed Party shall pay such bills to the Terminal Party within
forty-five (45) days from the date on which the bills were rendered.
Bills shall be payable in the currency in which the xxxx is rendered.
8.9 For any part of Segment T, nothing contained in this Agreement shall vest
or be deemed to vest in any Party, other than the relevant Terminal Party,
any salvage rights in that Segment, in the respective terminal station or
any terminal station substituted thereof.
8.10 Notwithstanding Paragraph 8.1 of this Agreement, a Party thereby granted a
Terminal Station Right of Use interest in Segment T may, prior to the
commencement of that Terminal Station Right of Use interest, elect to
renounce its Terminal Station Right of Use entitlement and to instead have
use of any Segment T for the duration of this Agreement on such terms and
conditions as are agreed between that Party and the
relevant Terminal Party, and in such event the provisions of Paragraphs
8.1-8.8 of this Agreement shall apply in relation to such use except
insofar as they may be modified by such agreements.
8.11 The Terminal Parties agree to grant a Terminal Station Right of Use to
SEA-ME-WE 3 IRU purchasers.
9. DEFINITION OF SEGMENT S CAPITAL COSTS
9.1 Segment S capital costs, (hereinafter referred to as "Segment S Capital
Costs"), are the costs incurred in connection with the engineering,
provision, construction, and installation of Segment S, or causing it to be
engineered, provided constructed and installed, and shall include:
(i) appropriate costs, including appropriate financial charges, incurred
under the MOU and the MOU-1 in respect of specific activities such as
desk top surveys and marine surveys;
(ii) those costs payable to the supplier under the Supply Contract
attributable to Segment S;
(iii)those costs directly incurred by the Terminal Parties, which shall be
fair and reasonable in amount and not included in the Supply Contract,
and which have been directly and reasonably incurred for the purpose
of, or to be properly chargeable in respect of, such engineering,
provision, construction, installation and laying of Segment S,
including, but not limited to, the costs of engineering, design,
materials, manufacturing, procurement and inspection, installation,
removing (with appropriate reduction for salvage), cable ship and
other ship costs, route survey, burying, testing associated with
laying or installation, customs duties, taxes (except income tax
imposed on the net income of a Party), appropriate financial charges,
supervision, billing activities, overheads and insurance or a
reasonable allowance in lieu of insurance if such Party elects to
carry a risk itself, being a risk which is similar to one against
which a supplier has insured or against which insurance is usual or
recognised or would have been reasonable.
(iv) those costs and expenses incurred by the Central Billing Party to be
appointed pursuant to Paragraph 10.2, up to the RFS Date, in
fulfilling its responsibilities as set forth in Annex 4;
(v) those costs and expenses incurred by the Network Administrator up to
the RFS Date in fulfilling its responsibilities as set forth in Annex
4.
9.2 The Segment S Capital Costs shall include Procurement Group costs but
exclude costs incurred by the Parties hereto in the holding of Management
Committee meetings, and meetings of its subcommittees or groups established
pursuant to Paragraphs 3.10 and 3.11.
9.3 For the purpose of this Agreement, the cost of the repair or replacement of
any part of SEA-ME-WE 3 in the event of damage or loss arising during
construction, laying, ???, which is
10. ALLOCATION AND BILLING OF SEGMENT S CAPITAL COSTS
10.1 The Segment S Capital Costs as defined in Paragraph 9, including any
additional work or property incorporated into Segment S subsequent to the
RFPA Date by agreement of the Management Committee, shall be borne by the
Parties in the proportions set forth in Schedule B. Notwithstanding the
above, the Segment S Capital Costs attributable to Segment S3 shall be
borne in accordance with Annex 7.
10.2 The Management Committee shall appoint a Central Billing Party (CBP) from
among the Terminal Parties. The terms of reference for the CBP are as set
forth in Annex 4.
10.3 Unless the Management Committee authorises changes to the procedures for
the rendering of bills for Segment S Capital Costs, the CBP shall promptly
render bills to each of the Parties for their pro rata share of the costs
due and included in the Supply Contract, in accordance with Schedule B and
the billing and payment procedures established by the F&ASC and approved by
the Management Committee. The Terminal Parties shall each render bills to
the CBP for such Party's costs incurred in accordance with Paragraph 9, for
non supply contract activities (including appropriate financial charges),
but not more frequently than once a quarter. All bills shall contain a
reasonable amount of detail to substantiate the bills. On the basis of such
bills, the Parties concerned shall make payments to the CBP or to such
entities as the CBP may designate, in accordance with billing and payment
procedures approved by the Management Committee. Each Party shall pay the
CBP the amount it owes within forty-five (45) days from the date on which
the bills were rendered by the CBP. Bills shall be payable in the currency
in which the xxxx is rendered.
10.4 As soon as practicable after the RFS Date, the amount of each Party's share
of Segment S Capital Costs shall be computed by the CBP as appropriate and
it shall make appropriate adjustments and render any necessary bills or
arrange any necessary refunds by way of final settlement, in order that
each Party may bear its proper share of costs, in accordance with the
percentage shares detailed at Schedule B.
10.5 For the purposes of this Agreement, financial charges shall be computed as
applicable on a daily basis from the date the cost is incurred until the
date payment is due, at a rate equal to the lowest publicly announced prime
rate or minimum commercial lending rate, however described, for 90 day
loans in the currencies of the Terminal Parties or the currency of billing,
as applicable, charged by established commercial banks in the countries
concerned on the fifteenth day of the month in which the costs were
incurred by the billing parties. If such a day is not a business day, the
rate prevailing on the next business day shall be used. The source of the
rate of such financial charges shall be as shown at Annex 5. The
application of financial charges relating to costs incurred for Segment S
shall be limited to a maximum of 180 days, unless otherwise approved by the
Management Committee.
10.6 Amounts billed and not Paid when due shall accrue extended payment charges
from the day following the date on which payment was due until Paid. If
the due date is not a business day, the due date shall be postponed to the
next business day. For the purposes of this Agreement, extended payment
charges shall be computed at 125% of the rate described in Paragraph 10.5
on the day following the date payment of the xxxx was due.
10.7 In the event that applicable law only allows the imposition of financial
charges and extended payment charges at the rate below that established in
accordance with this Paragraph 10, financial charges and extended payment
charges shall be at the highest rate permitted by applicable law.
10.8 No refund of financial charges and no extended payment charges shall be
made or imposed by the Central Billing Party or the billing Parties if the
amount of charges involved is less than one hundred ($100) US Dollars or
its equivalent in the billing currency.
10.9 In the case of bills containing costs billed on a preliminary billing
basis, appropriate adjustments shall be made in subsequent bills after the
actual costs involved are determined.
10.10 A xxxx shall be deemed to have accepted by the Party to whom it is
rendered if that Party does not present written objection on or before the
date when payment is due. If such objection is made, the CBP shall make
every reasonable effort to settle promptly the dispute concerning the xxxx
in question. If the objection is sustained and the billed Party has paid
the disputed xxxx, the agreed overpayment shall be refunded to the billed
Party by the CBP or the billing Party, as appropriate, promptly, together
with any financial charges calculated thereon, at a rate determined in
accordance with Paragraph 10.5 of this Agreement from the date of payment
of the xxxx to the date on which the refund is transmitted to the billed
Party. If the objection is not sustained and the billed Party has not paid
the disputed xxxx, the said Party shall pay such xxxx promptly together
with any extended payment charges calculated thereon at a rate determined
in accordance with Paragraph 10.6 of this Agreement, from the day
following the date on which payment was due until Paid. Nothing in this
Paragraph 10.10 shall relieve a Party from paying those parts of a xxxx
that are not in dispute, and, in the event of failure by a Party to do so,
that Party shall pay thereon extended payment charges in accordance with
Paragraph 10.6.
10.11 In the event that the actual cost of SEA-ME-WE 3 is lower than the budget,
each Party's cost shall be reduced on a pro-rata basis in accordance with
Schedule B, with no change to their Allocated Capacity. Where the actual
cost is higher than the budget each Party's cost shall be increased on a
pro-rata basis in accordance with Schedule B. In such an event, the
Parties shall receive additional Allocated Capacity in return for the
increased cost, as if the investment was made at the signing of this
Agreement and the benefits of the progression incentive pricing scheme
were applied.
11. DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE OF SEGMENTS
11.1 Each Terminal Party shall be solely responsible for the operation and
maintenance of the Segment T identified in Paragraph 6.1 and that portion
of Segment S between the
Cable System Interface at the terminal station and its respective Cable
Landing Point. Each Terminal Party shall use all reasonable efforts to
operate and maintain, or cause to be operated and maintained, Segment T and
the said portion of Segment S, economically and in efficient working order.
11.2 The Terminal Parties (for the purpose of Paragraph 11, collectively called
the "Maintenance Authorities" and each individually called a "Maintenance
Authority"), individually or collectively as appropriate shall use all
reasonable efforts to maintain economically Segment S in efficient working
order and with an objective of achieving effective and timely repairs when
necessary.
11.3 Prior to the RFS Date, the Maintenance Authorities shall submit, for review
by the O&MSC and approval by the Management Committee, appropriate
practices and procedures for the continued operation and maintenance of
Segment S. The Maintenance Authorities shall each provide information to
the O&MSC regarding the practices and procedures for the continued
operation and maintenance of their respective Segments. The Maintenance
Authorities shall also furnish such budgetary estimates of the cost of such
operation and maintenance of SEA-ME-WE 3 as the Management Committee may
reasonably request. Following the RFS Date, the Maintenance Authorities
shall provide the O&MSC and the Management Committee with such reports as
it may reasonably require on the operation of SEA-ME-WE 3, including any
proposals for planned repair or improvement work, together with
appropriately revised budgetary estimates relating to the operation and
maintenance of SEA-ME-WE 3. The O&MSC may review and amend the practices
and procedures for the operation and maintenance of Segment S, subject to
the approval of the Management Committee. The Management Committee may
revise the allocation of responsibility for the operation and maintenance
of Segment S.
11.4 The Maintenance Authorities shall have the right to deactivate Segment S,
or any part thereof, in order to perform their duties. Prior to such
deactivation, reasonable notice shall be given, and co-ordination shall be
established with the other Parties. To the extent possible, sixty (60) days
prior to initiating such action, the Maintenance Authorities involved shall
advise the other Parties in writing of the timing, scope, and costs of
significant planned maintenance operations, of significant changes to
existing operations and maintenance methods and of contractual arrangements
for cable ships or other maintenance facilities or devices that shall have
a significant impact on operation or maintenance costs. Should one or more
Parties representing at least five per cent (5%) of the total voting
interests in SEA-ME-WE 3 specified in Schedule B wish to review such
operation, change or arrangement prior to its occurrence, such Party or
Parties shall notify the appropriate Maintenance Authorities and the O&MSC
Chairman in writing within thirty (30) days of such advice. Upon such
notification, the O&MSC shall initiate action to convene an ad hoc meeting
for such a review.
11.5 Each Party that has designed or procured equipment used in SEA-ME-WE 3
shall give necessary information relating to the operation and maintenance
of the equipment to the Maintenance Authority responsible for the operation
and maintenance of the equipment to the Maintenance Authority responsible
for the operation and maintenance of such equipment. Each Maintenance
Authority with responsibility for the maintenance of any segment of
SEA-ME-WE 3 shall grant to each other Maintenance Authority prompt access
to information necessary for the performance of duties.
11.6 Each Maintenance Authority with respect to SEA-ME-WE 3 shall be authorised
to pursue claims in its own name, on behalf of the Parties, in the event of
any damage or
loss to SEA-ME-WE 3, or any part thereto, and may file appropriate lawsuits
or other proceedings on behalf of the Parties in accordance with Paragraph
23.3.
11.7 Under no circumstances shall any Party be liable to any other Party for any
loss or damage sustained by reason of any failure in, or breakdown of, the
facilities constituting SEA-ME- WE 3, or any interruption of service,
whatsoever shall be the cause of such failure, breakdown, or interruption,
and however long it shall last. If the Maintenance Authority responsible
for operating and maintaining such facilities involved as specified in this
Paragraph 11 fails to restore those facilities to efficient working order
and operation within a reasonable time after having been called upon to do
so by any other Party to whom capacity is assigned by this Agreement, the
Management Committee may, to the extent that it is practical to do so,
place or cause to be placed such facilities in efficient working order and
operation, and charge the Parties their proportionate share of the costs
reasonably incurred in doing so.
11.8 Each Party to this Agreement, at its own expense, shall have the right to
inspect from time to time the operation and maintenance of any portion of
SEA-ME-WE 3 and to obtain copies of the maintenance records. For this
purpose, each Maintenance Authority responsible for maintaining any Segment
of SEA-ME-WE 3 shall retain significant records, in accordance with
Paragraph 13.7.
11.9 The Maintenance Authorities shall be entitled to establish the necessary
agreements in respect of the crossings by Segment S of other undersea
plant, including, but not limited to, pipelines, and may sign these
agreements on behalf of the Parties after approval by the Management
Committee, and shall provide the Parties with appropriate copies of these
agreements on request.
12. ALLOCATION AND BILLING OF OPERATION AND MAINTENANCE COSTS OF SEGMENT S
12.1 The costs of operating and maintaining Segment S of SEA-ME-WE 3 shall be
shared by the Parties in the relevant proportions specified in Schedule B.
Notwithstanding the above, the costs of operating and maintaining Segment
S3 shall be borne in accordance with Annex 7.
12.2 The F&ASC shall be establish billing procedures for the operation and
maintenance costs of Segment S, for approval by the Management Committee.
12.3 The operation and maintenance costs to which Paragraph 12.1 refers shall be
the costs reasonably incurred in operating and maintaining the facilities
involved after the RFPA Date, including, but not limited to, the costs of
attendance, testing, adjustments, storage of plans and equipment, repairs
(including repairs at sea) and replacements, cable ships (including an
appropriate share of standby costs), cable depots, reburial and the
replacement of plans, tools and test equipment, system restoration costs,
customs duties, taxes (except income tax imposed upon the net income of a
Party) paid in respect of such facilities, billing activities, the Network
Administrator's and CBP's costs incurred after the RPS Date (on the basis
of a budget approved by the Management Committee), appropriate financial
charges, supervision, overheads and costs, and expenses reasonably incurred
on account of claims made by or against other persons in respect of such
facilities, or any part thereof, and damages or compensation payable by the
Parties concerned on account of such claims. Costs, expenses,
damages, or compensation payable to the Parties on account of claims made
against other persons shall be shared by the Parties in the proportions
specified in Schedule B.
12.4 Each Maintenance Authority shall render bills to the CBP for the
expenditures herein referred to not more frequently than quarterly, in
accordance with the procedures established by the F&ASC. Each Maintenance
Authority shall also furnish such further details of such bills as the
other Parties may reasonably require. On the basis of such bills, each
Party shall pay within forty-five (45) days from the date on which the
bills are rendered by the CBP. Bills shall be payable in the currency in
which the xxxx is rendered.
12.5 Amounts billed and not Paid when due shall accrue extended payment charges
from the day following the date on which payment was due until Paid, and
such charges are to be computed and applied in accordance with Paragraph
10.6 of this Agreement. If the due date is not a business day, the payment
shall be postponed to the next business day.
13. KEEPING AND INSPECTION OF BOOKS
13.1 For those portions of Segment S, if any, specified in the Supply Contract
as cost incurred items, the Procurement Group shall ensure that the Supply
Contract requires the supplier to keep and maintain such books, records,
vouchers and accounts of all such costs with respect to the engineering,
provision and installation of those items for a period a five (5) years
from the RFPA Date of Segment S, as specified in the Supply Contract.
13.2 For those portions of Segment S specified in the Supply Contract as fixed
cost items, the Procurement Group shall ensure that the Supply Contract
requires the supplier to keep and maintain records with respect to its
respective billing of those items for a period of five (5) years from the
RFPA Date of Segment S, as specified in the Supply Contract.
13.3 The Procurement Group shall ensure that the Supply Contract requires the
supplier to obtain from its contractors and subcontractors such supporting
records, for other than the cost of fixed cost items, as may be reasonably
required by Paragraph 13.1 and to keep and maintain such records for a
period of five (5) years from RFPA Date of Segment S, as specified in the
Supply Contract.
13.4 The Procurement Group shall ensure that the Supply Contract shall afford
the Parties to this Agreement the right to review the books, records,
vouchers, and accounts required to be kept, maintained, and obtained
pursuant to Paragraphs 13.1, 13.2 and 13.3.
13.5 With respect to costs incurred for the provision of Segment S by a Party,
comparable records to those specified in Paragraphs 13.1, 13.2 and 13.3 as
appropriate, shall be maintained by the party for a period of five (5)
years from the date that such costs were incurred.
13.6 The Procurement Group and the Terminal Parties shall each keep and maintain
such books, records, vouchers, and accounts of all costs that are incurred
in the engineering, provision and installation of Segments S and T and not
included in the Supply
Contract, which they incur directly, for a period of five (5) years from
the RFS Date or the date the work is completed, whichever is later. The CBP
shall keep and maintain such books, records, vouchers and accounts with
respect to its billing of costs incurred by the Terminal Parties, and any
other Party having incurred costs for implementation of SEA-ME-WE 3 as
authorised by the Management Committee, and costs billed under the Supply
Contract for a period of five (5) years from the System RFS Date or the
date on which the work is completed, whichever is later.
13.7 With respect to the operation and maintenance costs of Segments T and S,
such books, records, vouchers, and accounts of costs, as are relevant,
shall be kept and maintained by the Terminal Parties, according to
Accounting Practice, for a period of five (5) years from the date on which
the corresponding bills are rendered to the Parties. If a Terminal Party
does not retain these records beyond this period, a summary of important
items should be retained for the life of SEA-ME-WE 3.
13.8 Any Party, shall have the right to review or audit the relevant books,
records, vouchers, and accounts of costs pursuant to this Paragraph 13. In
affording the right to review or audit, any such Party whose records are
being reviewed or audited shall be permitted to recover, from the Party or
Parties requesting the review or audit, the entire costs reasonably
incurred in complying with the review or audit. In the case of an audit
initiated by the Management Committee and exercised by the F&ASC, the
audited Party or Parties shall be permitted to recover the entire costs of
the review or audit from the Parties in the proportions specified in
Schedule B.
13.9 Any rights of review and audit pursuant to this Paragraph 13 shall only be
exercisable through the F&ASC in accordance with the F&ASC's audit
procedures.
14. ASSIGNMENT AND USE OF CAPACITY
ALLOCATED CAPACITY
14.1 Parties shall obtain Allocated Capacity in return for their financial
investment in SEA-ME- WE 3 in accordance with Schedule F. Allocated
Capacity shall comprise Assigned Capacity, Reserve Capacity and Pool
Capacity.
ASSIGNED CAPACITY
14.2 The Assigned Capacity shall be assigned in specific Paths of SEA-ME-WE-3 in
accordance with Schedule F. Assigned Capacity shall be utilised to
establish Path Assignments as follows:
(i) Jointly assigned MIUs in a Path Assignment shall be considered as
consisting of two half-interests in MIU, with one half-interest
assigned to a Party, which together with the corresponding half
interest, shall be used for the provision of international
telecommunications services between such a Party and another Party or
a SEA-ME-WE 3 IRU purchaser.
(ii) Wholly-assigned MIUs in a Path Assignment shall be considered as
consisting of two-half interests in a MIU assigned to one Party. Such
wholly-assigned MIUs may only be assigned to the indicated Party for
provision of its "within country" traffic, subject to the approval of
the Management Committee.
14.3 Each Party shall designate its remaining Allocated Capacity to either
Reserve Capacity or Pool Capacity, or allocate a portion to each category.
RESERVE CAPACITY
14.4 Any Party having Reserve Capacity may, at times approved by the Management
Committee, have such capacity, or a portion thereof redesignated to its
Assigned Capacity. In the event that such a redesignation of capacity will
result in a Segment or fibre in SEA-ME-WE 3 exceeding a threshold level
which may cause a bottleneck in SEA- ME-WE 3, the Management Committee's
approval for such a redesignation of capacity shall be required. The
AR&RSC will recommend to the Management Committee for their approval such
an appropriate threshold level.
14.5 A Party may only transfer capacity from Reserve Capacity to Pool Capacity
following the approval of the Management Committee.
14.6 Any Party having Reserve Capacity may utilise such capacity for its own
half-interest in the provision of temporary or occasional
telecommunications services.
POOL CAPACITY
14.7 Pool Capacity shall comprise that capacity available for the sale of
SEA-ME-WE 3 IRUs in accordance with this Paragraph 14.
14.8 A Party may transfer capacity from Pool Capacity to Reserve Capacity as
follows:
(i) once a year after the effective date of this Agreement, a Party may
convert all, or a portion of such capacity to Reserve Capacity, in
accordance with procedures developed by the Network Administrator.
(ii) notwithstanding Paragraphs 14.8(i), any Party may transfer capacity
from its Pool Capacity to Reserve Capacity on other occasions,
subject to the approval of the Management Committee.
14.9 Except with the approval of the Management Committee, no Party may
reassign any of the Path Assignments of its Assigned Capacity prior to the
depletion of the Pool Capacity.
14.10 Except as provided in Paragraph 14.21, no Party may make available any of
its Assigned Capacity or Reserve Capacity, on any basis whatsoever, to
another Carrier, except with the approval of the Management Committee.
14.11 Schedules D, E and F shall be modified, as appropriate, to reflect any
changes in the categorisation of capacity.
IRU SALES
14.12 Except as provided in Paragraph 15, any capacity acquired after the
signing of this Agreement shall be by the purchase of a SEA-ME-WE 3 IRU.
SEA-ME-WE 3 IRUs shall be acquired in specific Paths of SEA-ME-WE 3 in
accordance with Schedule K. SEA-ME-WE 3 IRUs shall be utilised to
establish Path Assignments as follows;
(i) jointly-acquired SEA-ME-WE 3 IRUs shall be considered as consisting
of two half-interests in a MIU, with one half-interest acquired by
the SEA-ME-WE 3 IRU purchaser, which, together with the
corresponding half-interest, will be used for the provision of
international telecommunications services between such a SEA- ME-WE
3 IRU purchaser and a Party or another SEA-ME-WE 3 IRU purchaser.
(ii) wholly-acquired SEA-ME-WE 3 IRUs shall be considered as consisting
of two half-interests in a MIU acquired by one SEA-ME-WE 3 IRU
purchaser. Such MIUs may only be acquired by the SEA-ME-WE 3 IRU
purchaser for provision of its "within country" traffic, subject to
the approval of the Management Committee.
14.13 The Initial Parties shall establish the SEA-ME-WE 3 IRU sales procedure
and SEA-ME- WE 3 IRU agreement (which shall include the price of the
SEA-ME-WE 3 IRU, the use of capacity and the terms and conditions under
which the said capacity is maintained and operated), for approval by the
Management Committee. The IRU price shall not be lower than the ownership
price, unless otherwise agreed by the Management Committee. Following such
approval, the Network Administrator shall be authorised to execute such
IRU Agreements with Carriers on behalf of the Parties to this Agreement.
No provisions of the IRU Agreement shall override the provisions of this
Agreement.
14.14 Where a Carrier requesting a SEA-ME-WE 3 IRU is not a Party, such sale
shall be approved by the Management Committee.
14.15 Capacity required for a SEA-ME-WE 3 IRU prior to the depletion of the Pool
Capacity shall be taken from such Pool Capacity.
14.16 Capacity for the SEA-ME-WE 3 IRU shall be taken from each Party's Pool
Capacity in proportion to its contribution to the Pool Capacity. Funds
from such sales of SEA-ME- WE 3 IRU capacity shall be reimbursed to the
Parties concerned in proportion to their contribution of MIU *km to the
Pool Capacity, as defined in Schedule 11. The Network Administrator shall
amend the relevant Schedules to reflect such capacity transactions.
14.17 After the Pool Capacity has been disposed of, subsequent sales of
SEA-ME-WE 3 IRU shall be from the Common Reserve Capacity. Funds from such
sales of SEA-ME-WE 3 IRU shall be reimbursed to all of the Parties in
accordance with Schedule C.
14.18 The funds from Operation and Maintenance charges of Segment S as specified
in Paragraph 12, which are payable by the SEA-ME-WE 3 IRU purchasers will
be distributed to the Parties in accordance with Schedule 1.
Notwithstanding Paragraphs 14.15 - 14.18, the provision of IRU capacity
and the distribution of funds resulting from the sale of Segment S3
Southern Capacity (as defined in Annex 7), shall be in accordance with
Annex 7.
14.19 The funds from Terminal Station Right of Use charges as specified in
Paragraph 8, which are payable by the SEA-ME-WE 3 IRU purchasers, will be
distributed to the Parties in proportion to the Parties' allocation of the
specific Segment T costs, in accordance with Schedule D.
14.20 The conditions in Paragraphs 14.15, 14.18 and 14.19 will not be applicable
with respect to the SEA-ME-WE 3 IRU purchases described in Paragraphs
14.21 (II).
14.21 Notwithstanding the above, where the SEA-ME-WE 3 IRU purchaser is located
in the same country as an Initial Party, the Initial Party shall have
first priority in providing the capacity for the SEA-ME-WE 3 IRU from
either;
(i) its Pool Capacity. Such priority shall not be applicable to meeting
the SEA-ME- WE 3 IRU requirements of Existing Carriers before 31st
of December 2000. In the event that an Initial Party's Pool Capacity
is insufficient to meet the full requirements for the SEA-ME-WE 3
IRU, the additional capacity shall be deducted from the Pool
Capacity in accordance with Paragraph 14.16, or
(ii) its Assigned Capacity, subject to the approval of the Party with
which the capacity is jointly held. Such priority shall not be
applicable to meeting the requirements of the Existing Carriers.
The Network Administrator shall be authorised to execute such IUR
Agreements in accordance with the terms and conditions established through
Paragraph 14.13 following written approval by the appropriate Initial
Party. In such instances, all the funds from the SEA-ME-WE 3 IRU shall be
reimbursed to the said Initial Party.
14.22 Notwithstanding Paragraphs 14.16 and 14.21, Parties owning Priority Pool
Capacity shall have priority of sale of such capacity, as detailed in
Annex 6.
COMMON RESERVE CAPACITY
14.23 The Common Reserve Capacity of SEA-ME-WE 3 shall be held by the Parties in
common and undivided shares in the proportions set forth in Schedule C.
14.24 The Management Committee may authorise the utilisation of the Common
Reserve Capacity for in-system restoration arrangements and mutual-aid
restoration for other cable systems on terms and conditions to be
determined by the Management Committee.
14.25 The Management Committee may authorise the allocation and exchange or sale
of a portion of the Common Reserve Capacity with other cable systems on
such basis as is doomed mutually beneficial to the Parties. The terms and
conditions of such allocation and exchange or sale of capacity shall be
agreed by the Management Committee.
14.26 The Initial Parties shall be authorised to allow the occasional commercial
use (hereinafter referred to as "Occasional Commercial Use") of the Common
Reserve Capacity, if available, when the Initial Parties deem that such
use shall not adversely affect SEA-ME- WE 3 IRU sales, for the
provisioning of temporary or occasional telecommunications services,
including but not limited to, leases to any Party or SEA-ME-WE 3 IRU
purchaser and paid restoration services, on terms and conditions to be
determined by the Initial Parties. The revenue from such Occasional
Commercial Use shall be reimbursed to the Initial Parties in accordance
with Schedule G.
GENERAL
14.27 The communication capability of any Allocated Capacity may be optimised by
the Parties to whom such capacity is assigned by the use equipment which
shall more efficiently use such capacity, provided that the use of such
equipment does not cause an interruption of, or interference, impairment,
or degradation to, the use of any other capacity in SEA-ME- WE 3, or
prevent the use of similar equipment by other Parties. Such equipment, if
used, shall not constitute a part of SEA-ME-WE 3.
14.28 SEA-ME-WE 3 shall be capable of supporting payload paths of VC12, VC3 and
VC4. Parties have the right to access such payload paths which shall
require 1, 21 and 63 MIUs respectively. Such requirements shall be
reflected in Schedules F and/or J as appropriate.
15. EXPANSION OF ALLOCATED CAPACITY
In the event that the Initial Parties consider that it is beneficial to
increase the Allocated Capacity after the signing of this Agreement, a
proposal shall be submitted to the Management Committee for its approval.
To approve such a proposal a majority of sixty-six per cent (66%) of the
total voting interests specified in Schedule B is required. Following such
an expansion, each Party shall obtain its pro-rata share of the increase
in Allocated Capacity in accordance with Schedule C. Parties shall specify
the portion of their expanded Allocated Capacity that they wish to
categorise as Assigned Capacity (with the agreement of the Party with whom
the capacity shall be jointly assigned) and Reserve Capacity. All the
remaining expanded Allocated Capacity shall be defined as Pool Capacity.
16. CAPACITY ROUTING
16.1 At times to be determined by the Management Committee, the capacity
routing of all Carriers shall be reviewed and established in such a way as
is necessary to allocate the capacity in SEA-ME-WE 3 to achieve the most
efficient utilisation of the entire SEA-ME- WE 3. Such routing shall be as
determined by the AR&RSC pursuant to the Terms of Reference as set forth
in Annex 4 of this Agreement, and shall be based on principles of capacity
routing which shall be established by the AR&RSC and approved by the
Management Committee.
16.2 The Network Administrator shall in addition administer the routing of
capacity associated with sales of capacity in SEA-ME-WE 3 and the
Occasional Commercial Use of Common Reserve Capacity. Such routing shall
be as determined by the Network Administrator pursuant to the Terms of
Reference as set forth in Annex 4 of this Agreement and shall be based on
principles of capacity routing which shall be approved by the Management
Committee.
16.3 One or more assigned MIUs shall be initially arranged, as such initial
arrangement may be agreed by the AR&RSC, to ensure complete fascicles of
63 MIUs in the smallest number of such fascicles practicable, as such
Parties with capacity assignments in a
Basic System Payload Module may desire. In addition, one or more Parties
assigned such capacity in the aggregate of more than one MIU in a Basic
System Payload Module may, by agreement with the Parties to whom such MIUs
are jointly assigned, combine their MIUs to avail themselves of the right
afforded in this Paragraph 16 with respect to the initial arrangement of
MIUs.
16.4 Subsequent to the initial arrangement of MIUs as provided in Paragraph 16.3
of this Agreement, MIUs assigned to one or more Parties may be rearranged,
if so requested by such Parties, so far as reasonably possible, provided
that:
(i) the agreement of the relevant Terminal Party is obtained; and
(ii) the agreement of other Parties with assigned MIUs that would be
affected by the proposed rearrangement is obtained; and
(iii)all costs arising from the proposed rearrangement are paid by the
Parties requesting it.
17. INCREASE OR DECREASE OF DESIGN CAPACITY
17.1 In the event that the Initial Parties consider that it is beneficial to
increase the Design Capacity of SEA-ME-WE 3, a Design Capacity expansion
proposal shall be submitted to the Management Committee. To carry such a
proposal, a seventy-five per cent (75%) majority of the total voting
interests specified in Schedule B is required.
17.2 If, subsequent to the RFS Date, the Design Capacity of SEA-ME-WE 3 or any
Segment thereof is increased or decreased pursuant to the agreement of the
Parties or otherwise, and such increase or decrease of the Design Capacity
affects neither the routing of circuits assigned in SEA-ME-WE 3 nor the
Allocated Capacity of SEA-ME-WE 3, the additional or reduced Design
Capacity shall be added to or subtracted from the Common Reserve Capacity,
as appropriate, with no change to the Schedules of this Agreement.
17.3 In the event that the capacity which SEA-ME-WE 3 or any Segment thereof is
capable of providing is reduced below the capacity required to support the
Assigned Capacity on its existing or planned routings as a result of
physical deterioration, or for other reasons beyond the control of the
Parties, the Management Committee shall initiate a review of the capacity
routings in accordance with Paragraph 16.1, in order to support the
rerouting of such Assigned Capacity.
17.4 In the event that the capacity which SEA-ME-WE 3 or any Segment thereof is
capable of providing is lower than the capacity needed to support the
routing of circuits assigned in SEA-ME-WE 3, the Path Assignments of the
Parties in Schedule F may be reduced or changed as necessary and agreed by
the Parties affected, and financial adjustments shall be made among the
Parties, as necessary, on the terms and conditions to be agreed by the
Management Committee. The Schedules shall be modified, as appropriate, to
reflect the revised Path Assignments associated with such decrease of the
Design Capacity.
with respect to such interests at the first time any Party terminates its
participation in this Agreement, upon the appropriate trusts by the Parties
who are the owners thereof.
27.6 Upon termination of this Agreement, the Parties shall use all reasonable
efforts to liquidate Segment S of SEA-ME-WE 3 within a reasonable time (one
year) by sale or other disposition between the Parties or any of them or by
sale to other entities or persons, but no sale or disposition shall be
effected except by agreement between or among the Parties who have
interests in the subject thereof at the time this Agreement is terminated.
In the event agreement cannot be reached, the decision shall be carried on
the basis of a majority (more than 50%) of all the voting interests as
specified in Schedule B. The costs or net proceeds of interests of every
sale or other disposition shall be divided between or among the Parties who
have or were deemed to have interests in the subject thereof at the time
this Agreement is terminated, in the proportions specified in Schedule B
immediately prior to the first time any Party terminates its participation
in this Agreement or this Agreement is terminated pursuant to Paragraph
27.1, whichever occurs first. The Parties shall execute such documents and
take such action as may be necessary to effect any sale or other
disposition made pursuant to this Paragraph 27.
27.7 A Party's termination of its participation in this Agreement or the
termination of this Agreement pursuant to Paragraph 27.1 shall not relieve
that Party or Parties from any liabilities, costs, damages or obligations
which may arise in connection with claims made by third parties with
respect to SEA-ME-WE 3, the facilities that comprise SEA-ME-WE 3 or any
part or portion thereof, or which may arise in relation to SEA-ME-WE 3 due
to any law, order, or regulation made by any government or supranational
legal authority pursuant to any international convention, treaty or
agreement. Any such liabilities, costs, damages, or obligations shall be
divided among the Parties in the proportions in which such Parties
allocation of costs is specified in Schedule B immediately prior to the
first time any Party terminates its participation in this Agreement or this
Agreement is terminated pursuant to Paragraph 27.1, whichever occurs first.
27.8 When the Management Committee considers the abandonment of SEA-ME-WE 3, the
Management Committee shall, based on proposals submitted by each Terminal
Party, produce an abandonment programme and budget (hereinafter called the
"Abandonment Programme and budget") based on the anticipated costs of
abandonment of SEA-ME-WE 3 at the date when such abandonment is anticipated
to take place. The Abandonment Programme and Budget shall address all
relevant matters, to include but not be limited to, if necessary, removal
of structures and cables and alternative uses for the abandoned portion of
SEA-ME-WE 3.
27.9 Except to the extent otherwise provided in this Agreement, abandonment
costs as included in the Abandonment Programme and Budget or as varied by
the agreement of the Management Committee shall be shared by the Parties in
accordance with Schedule B, as it existed immediately prior to the first
time any Party terminated its participation or when this Agreement was
terminated whichever occurs first.
28. CURRENCY AND PLACE OF PAYMENT
Bills rendered under this Agreement shall be rendered in the currency of
the billing Party, or the currency in which the cost was incurred provided
that such currency is a
currency of a Terminal Party, or as specified in the Supply Contract. Bills
shall be payable in the currency in which the xxxx is rendered, or as
designated by the Management Committee, to the designated office or account
of the payee.
29. WAIVER
No delay, neglect or forbearance on the part of any Party in enforcing any
term or condition of this Agreement shall be deemed to be a waiver or in
any way prejudice the rights of other Parties under this Agreement.
30. FORCE MAJEURE
If any Party cannot fulfil its obligations in this Agreement due to an
event beyond its reasonable control, including, but not limited to
lightning, flood, exceptionally severe weather, typhoon, fire or explosion,
civil disorder, war or military operations, national or local emergency,
anything done by government or other competent authority, it shall not be
liable to the other Parties for such delay in performance or failure to
perform and shall give notice to the other Parties as soon as reasonably
practical after the event has occurred.
31. SETTLEMENT OF DISPUTES AND INTERPRETATION OF AGREEMENT
31.1 If a dispute should arise under this Agreement between or among the
Parties, they shall make every reasonable effort to resolve such dispute.
However, in the event that they are unable to resolve such dispute the
matter shall be referred to the Management Committee which shall either
resolve the matter or determine the method by which the matter should be
resolved (including arbitration if appropriate). This procedure shall be
the sole and exclusive remedy for any dispute which may arise under this
Agreement between or among the Parties. The performance of this Agreement
by the Parties shall continue during the resolution of any dispute.
31.2 If any difference shall arise between or among the Parties or any of them
in respect of the interpretation or effect of this Agreement or any part or
provision thereof or their rights and obligations thereunder, and by
reasons thereof there shall arise the need to decide the question by what
municipal or national law this Agreement or such part or provision thereof
is governed, the following facts shall be excluded from consideration,
namely that this Agreement was made in a particular country and that it may
appear by reason of its form, style, language or otherwise to have been
drawn preponderantly with reference to a particular system of municipal or
national law; the intention of the Parties being that such facts shall be
regarded by the Parties and in all courts and tribunals wherever situated
as irrelevant to the question aforesaid and to the decision thereof.
32. EXECUTION OF AGREEMENT
This Agreement and any Supplementary Agreements hereto shall be executed in
one (1) original in the English language. Identical counterparts may be
executed and when
well as separately, constitute one and the same instrument. FT shall be the
custodian of the original and shall provide certified photocopies to
Parties to this Agreement.
33. ALTERATIONS AND ADDITIONS
33.1 Subject to Paragraph 33.4, this Agreement and any of the provisions hereof
may be altered or added to only by another agreement in writing signed by a
duly authorised person on behalf of each and every Party to this Agreement.
Only one (1) original of such Supplementary Agreement shall be executed.
33.2 FT shall be responsible for the prompt distribution of certified
photocopies of any amendment or Supplementary Agreements hereto all other
Parties and shall retain such signed original amendments or supplementary
agreements. Such Party shall accord access to such documents to a
requesting Party upon reasonable notice.
33.3 In the case of a Party changing the categorisation of its capacity, the
modified Schedules shall be certified by the Network Administrator on
behalf of the Parties. The Network Administrator shall require in such
instances written instructions by Parties wishing to reassign capacity and
shall obtain the Management Committee's approval, which can be by
correspondence. The Network Administrator shall be responsible for issuing
such modified Schedules.
33.4 Paragraph 33.1 shall not apply to any Schedule modified in accordance with
any other provision of this Agreement and any Schedule so modified shall be
deemed to be a part of this Agreement in substitution for the immediately
preceding version of that Schedule.
34. SUCCESSORS BOUND
This Agreement shall be binding on the Parties, their successors, and
permitted assigns.
35. SEVERABILITY
If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather the entire Agreement
shall be construed as if not containing the particular invalid or
unenforceable provision, and the rights and obligations of the Parties
shall be construed and enforced accordingly.
36. COMPLIANCE WITH LAW
The Parties shall comply with all applicable laws of all countries,
territories and places having jurisdiction over the activities performed
under or contemplated by this Agreement.
37. NOTICES
Any notice or other communication given or made under this Agreement shall
be in writing and shall be delivered by hand or sent by express mail or by
facsimile as appropriate.
TESTIMONIUM
IN WITNESS WHEREOF, the Parties hereto have signed.
For and on behalf of
COMPANHIA PORTUGUESA RADIO XXXXXXX XX
By:
-----------------------------------------
For and on behalf of
FRANCE TELECOM
By:
-----------------------------------------
For and on behalf of
BRITISH TELECOMMUNICATIONS PUBLIC LIMITED COMPANY
By:
-----------------------------------------
For and on behalf of
BELAGACOM S.A.
By:
-----------------------------------------
For and on behalf of
DEUTSCHE TELEKOM AG
By:
-----------------------------------------
For and on behalf of
AAPT TELECOMMUNICATIONS PTY LIMITED
By:
-----------------------------------------
For and on behalf of
ABS-CBN TELECOM NORTH AMERICA INC
By:
-----------------------------------------
For and on behalf of
AT&T CORP
By:
-----------------------------------------
For and on behalf of
BAHRAIN TELECOMMUNICATIONS COMPANY BSC
By:
-----------------------------------------
For and on behalf of
BEZEQ - ISRAEL TELECOM CORPORATION LIMITED
By:
-----------------------------------------
For and on behalf of
BULGARIAN TELECOMMUNICATIONS COMPANY LIMITED
By:
-----------------------------------------
For and on behalf of
CAPITOL WIRELESS INC
By:
-----------------------------------------
For and on behalf of
CELLULAR COMMUNICATIONS NETWORK (M) SDN BHD
By:
-----------------------------------------
For and on behalf of
DACOM CORPORATION
By:
-----------------------------------------
For and on behalf of
DIGITAL TELECOMMUNICATIONS PHILS, INC.
By:
-----------------------------------------
For and on behalf of
DSTCOM BRUNEI
By:
-----------------------------------------
For and on behalf of
EASTERN TELECOMMUNICATIONS PHILLIPPINES INC
By:
-----------------------------------------
For and on behalf of
EMPRESA BRASILEIRA DE TELECOMUNICACOBS INC
By:
-----------------------------------------
For and on behalf of
ENTERPRISE DBS POSTES ET TELECOMMUNICATIONS DU LUXEMBOURG
By:
-----------------------------------------
For and on behalf of
GLOBE TELECOM
By:
-----------------------------------------
For and on behalf of
GTE HAWAIIAN TEL.
By:
-----------------------------------------
For and on behalf of
HPT
By:
-----------------------------------------
For and on behalf of
HUNGARIAN TELECOMMUNICATIONS COMPANY LTD.
By:
-----------------------------------------
For and on behalf of
INTERNATIONAL DIGITAL COMMUNICATIONS, INC.
By:
-----------------------------------------
For and on behalf of
INTERNATIONAL TELECOM JAPAN INC.
By:
-----------------------------------------
For and on behalf of
INTERNATIONAL TELECOMMUNICATIONS CORPORATION
By:
-----------------------------------------
For and on behalf of
MCI INTERNATIONAL INC
By:
-----------------------------------------
For and on behalf of
MERCURY COMMUNICATIONS LIMITED
By:
-----------------------------------------
For and on behalf of
KOKUSAI DENSHIN DENWA CO. LTD.
By:
-----------------------------------------
For and on behalf of
KOREA TELECOM
By:
-----------------------------------------
For and on behalf of
CHINA TELECOM
By:
-----------------------------------------
For and on behalf of
INTERNATIONAL TELECOMMUNICATION DEVELOPMENT CORPORATION
By:
-----------------------------------------
For and on behalf of
HONG KONG TELECOM INTERNATIONAL LIMITED
By:
-----------------------------------------
For and on behalf of
COMPANHIA DE TELECOMUNICACOBS DE MACAU S.A.R.L.
By:
-----------------------------------------
For and on behalf of
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY
By:
-----------------------------------------
For and on behalf of
VIETNAM POSTS AND TELECOMMUNICATIONS CORPORATION
By:
-----------------------------------------
For and on behalf of
JABATAN TELBKOM OF BRUNEI DARUSSALAM
By:
-----------------------------------------
For and on behalf of
TELEKOM MALAYSIA BERHAD (128740-P)
By:
-----------------------------------------
For and on behalf of
SINGAPORE TELECOMMUNICATIONS LIMITED
By:
-----------------------------------------
For and on behalf of
PT (PERSERO) INDONESIA SATELLITE CORPORATION
By:
-----------------------------------------
For and on behalf of
TELSTRA CORPORATION LIMITED
By:
-----------------------------------------
For and on behalf of
THE COMMUNICATIONS AUTHORITY OF THAILAND
By:
-----------------------------------------
For and on behalf of
MYANMA POSTS & TELECOMMUNICATIOS
By:
-----------------------------------------
For and on behalf of
SRI LANKA TELECOM LTD
By:
-----------------------------------------
For and on behalf of
VIDESH XXXXXXX XXXXX LIMITED
By:
-----------------------------------------
For and on behalf of
PAKISTAN TELECOMMUNICATION COMPANY LIMITED
By:
-----------------------------------------
For and on behalf of
GENERAL TELECOMMUNICATIONS ORGANIZATION OF OMAN
By:
-----------------------------------------
For and on behalf of
EMIRATES TELECOMMUNICATIONS CORPORATION
By:
-----------------------------------------
For and on behalf of
OFFICE DES POSTES BT TELECOMMUNICATIONS DB LA REPUBLIQUE DE DIBOUTI
By:
-----------------------------------------
For and on behalf of
MINISTRY OF POSTS, TELEGRAPHS AND TELEPHONES
By:
-----------------------------------------
For and on behalf of
ARAB REPUBLIC OF EGYPT NATIONAL TELECOMMUNICATIONS ORGANISATION
By:
-----------------------------------------
For and on behalf of
CYPRUS TELECOMMUNICATIONS AUTHORITY
By:
-----------------------------------------
For and on behalf of
TURK TELEKOMINIKASYON A.S.
By:
-----------------------------------------
For and on behalf of
THE HELLENIC TELECOMMUNICATIONS ORGANISATION
By:
-----------------------------------------
For and on behalf of
TELECOM ITALIA S.p.A.
By:
-----------------------------------------
For and on behalf of
OFFICE NATIONAL DES POSTES ET DES TELECOMMUNICATIONS
By:
-----------------------------------------
For and on behalf of
COMPANHIA PORTUGUBSA RADIO XXXXXXX XX
By:
-----------------------------------------
For and on behalf of
FRANCE TELECOM
By:
-----------------------------------------
For and on behalf of
BRITISH TELECOMMUNICATIONS PUBLIC LIMITED COMPANY
By:
-----------------------------------------
For and on behalf of
BELGACOM S.A.
By:
-----------------------------------------
For and on behalf of
DEUTSCHE TELEKOM AG
By:
-----------------------------------------
For and on behalf of
AAPT TELECOMMUNICATIONS PTY LIMITED
By:
-----------------------------------------
For and on behalf of
ABS-CBN TELECOM NORTH AMERICA INC
By:
-----------------------------------------
For and on behalf of
AT&T CORP
By:
-----------------------------------------
For and on behalf of
BAHRAIN TELECOMMUNICATIONS COMPANY BSC
By:
-----------------------------------------
For and on behalf of
BBZBQ - ISRAEL TELECOM CORPORATION LIMITED
By:
-----------------------------------------
For and on behalf of
BULGARIAN TELECOMMUNICATIONS COMPANY LIMITED
By:
-----------------------------------------
For and on behalf of
CAPITOL WIRELESS INC
By:
-----------------------------------------
For and on behalf of
CELLULAR COMMUNICATIONS N ETWORK (M) SDN BHD
By:
-----------------------------------------
For and on behalf of
DACOM CORPORATION
By:
-----------------------------------------
For and on behalf of
KOKUSAI DENSHIN DENWA CO. LTD.
By:
-----------------------------------------
For and on behalf of
KOREA TELECOM
By:
-----------------------------------------
For and on behalf of
CHINA TELECOM
By:
-----------------------------------------
For and on behalf of
INTERNATIONAL TELECOMMUNICATION DEVELOPMENT CORPORATION
By:
-----------------------------------------
For and on behalf of
HONG KONG TELECOM INTERNATIONAL LIMITED
By:
-----------------------------------------
For and on behalf of
COMPANHIA DE TELECOMUNICACOBS DE MACAU S.A.R.L.
By:
-----------------------------------------
For and on behalf of
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY
By:
-----------------------------------------
For and on behalf of
VIETNAM POSTS AND TELECOMMUNICATIONS CORPORATION
By:
-----------------------------------------
For and on behalf of
JABATAN TELEKOM OF BRUNEI DARUSSALAM
By:
-----------------------------------------
For and on behalf of
TELEKOM MALAYSIA BERHAD (128740-P)
By:
-----------------------------------------
For and on behalf of
SINGAPORE TELECOMMUNICATIONS LIMITED
By:
-----------------------------------------
For and on behalf of
PT (PERSERO) INDONESIA SATELLITE CORPORATION
By:
-----------------------------------------
For and on behalf of
TELSTRA CORPORATION LIMITED
By:
-----------------------------------------
For and on behalf of
THE COMMUNICATIONS AUTHORITY OF THAILAND
By:
-----------------------------------------
For and on behalf of
DIGITAL TELECOMMUNICATIONS PHILS, INC.
By:
-----------------------------------------
For and on behalf of
DSTCOM BRUNEI
By:
-----------------------------------------
For and on behalf of
EASTERN TELECOMMUNICATIONS PHILIPPINES INC.
By:
-----------------------------------------
For and on behalf of
EMPRESA BRASILEIRA DE TELECOMUNICACOBS INC
By:
-----------------------------------------
For and on behalf of
ENTERPRISE DES POSTES BT TELECOMMUNICATIONS DU LUXEMBOURG
By:
-----------------------------------------
For and on behalf of
GLOBE TELECOM
By:
-----------------------------------------
For and on behalf of
GTE HAWAIIAN TEL
By:
-----------------------------------------
For and on behalf of
HPT
By:
-----------------------------------------
For and on behalf of
HUNGARIAN TELECOMMUNICATIONS COMPANY LTD.
By:
-----------------------------------------
For and on behalf of
INTERNATIONAL DIGITAL COMMUNICATIONS INC.
By:
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For and on behalf of
INTERNATIONAL TELECOM JAPAN INC.
By:
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For and on behalf of
INTERNATIONAL TELECOMMUNICATIONS CORPORATION
By:
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For and on behalf of
MCI INTERNATIONAL INC.
By:
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For and on behalf of
MERCURY COMMUNICATIONS LIMITED
By:
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For and on behalf of
MP8 INTERNATIONAL INC
By:
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For and on behalf of
MINISTERE DBS POSTES ET TELECOMMUNICATIONS DU LIBAN
By:
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For and on behalf of
MINISTRY OF TELECOMMUNICATIONS OF KUWAIT
By:
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For and on behalf of
MUTIARA TELECOMMUNICATIONS SDN BHD
By:
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For and on behalf of
ONSE TELECOMMUNICATIONS CORPORATION
By:
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For and on behalf of
OPTUS NETWORKS PTY LIMITED
By:
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For and on behalf of
OY FINNET INTERNATIONAL AB
By:
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For and on behalf of
PACIFIC GATEWAY EXCHANGE
By:
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For and on behalf of
PHILIPPINE GLOBAL COMMUNICATIONS INC.
By:
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For and on behalf of
POST UND TELEKOM AUSTRIA AKTIBNGESELLSCHAFT
By:
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For and on behalf of
PT SATBLIT PALAPA INDONESIA
By:
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For and on behalf of
PTT TELECOM BV
By:
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For and on behalf of
QATAR PUBLIC TELECOMMUNICATIONS CORPORATION
By:
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For and on behalf of
ROSTELCOM JOINT STOCK COMPANY
By:
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For and on behalf of
SMART COMMUNICATIONS INC.
By:
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For and on behalf of
SOCIETE NATIONALE DES TELECOMMUNICATIONS DU SENRGAL
By:
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For and on behalf of
SPRINT COMMUNICATIONS COMPANY L.P.
By:
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For and on behalf of
SPT TELECOM A.S.
By:
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For and on behalf of
SWISS TELEKOM PTT
By:
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For and on behalf of
SYRIAN TELECOMMUNICATIONS ESTABLISHMENT
By:
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For and on behalf of
TELE DANMARK A/S
By:
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For and on behalf of
TELECOM FINLAND LIMITED
By:
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For and on behalf of
TELECOM IRELAND
By:
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For and on behalf of
TELECOM NEW ZEALAND LIMITED
By:
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For and on behalf of
TELECOMMUNICATIONS COMPANY OF IRAN
By:
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For and on behalf of
TELECOMMUNICATIONES INTERNACIONALES DE ARGENTINA
By:
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For and on behalf of
TELEFONICA DE ESPANA, SA.
By:
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For and on behalf of
TELEGLOBE CANADA INC.
By:
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For and on behalf of
TELEKOMUNIKACIA POLSKA S.A.
By:
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For and on behalf of
TELENOR CARRIER SERVICES AS
By:
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For and on behalf of
TELIA
By:
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For and on behalf of
TELKOM SA LIMITED
By:
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For and on behalf of
TIME TELECOMMUNICATIONS SDN BHD
By:
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For and on behalf of
TRANSOCEANIC COMMUNICATIONS INC
By:
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For and on behalf of
TRANSPACIFIC TECH INC
By:
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For and on behalf of
TUNISIE TELECOM
By:
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For and on behalf of
UKRAINIAN PUBLIC COMPANY OF INTERNATIONAL AND LONG DISTANCE
TELECOMMUNICATIONS
By:
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For and on behalf of
VIBAKOM GMBH
By:
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