Atlantic Cable Maintenance and Repair Agreement Exhibit 10.23
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ATLANTIC CABLE MAINTENANCE
AND
REPAIR AGREEMENT
(ACMA)
Atlantic Cable Maintenance and Repair Agreement
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ATLANTIC CABLE MAINTENANCE AND REPAIR AGREEMENT
This Agreement is made as of the 20th day of January 1998 between the Parties
which have signed this Agreement and which are identified in Schedule A
attached.
WHEREAS:
A. the Parties wish to provide an arrangement for the Repair and Maintenance and
Improvement of Scheduled Cables for which the Maintenance Authorities are
responsible within the Area;
B. the basis of this arrangement is intended to be co-operative action among the
Parties for the mutual benefit of the Parties;
C. the Ship Operators operate Cable Ships to which the Maintenance Authorities
wish to have access under the terms of this Agreement;
D. this Agreement sets out the terms and conditions governing the availability
of the Cable Ships and the calculation and allocation of the costs connected
with their employment as well as the operating procedures necessary to carry out
the purpose of this Agreement;
E. this Agreement is intended by the Parties to cancel and supersede the
previous Atlantic Cable Maintenance and Repair Agreement dated 1 April 1989.
NOW IT IS AGREED by and between the Parties as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement the expressions set out below shall bear the following
meanings:
"Accounting Units" means units which are allocated to
Scheduled Cables and their respective
Maintenance Authorities; the values of
these units are derived as specified
in Schedule B and are listed in
Schedules B1 and B2 as may be revised
from time to time pursuant to this
Agreement;
"Affiliate" means in relation to any Party any
company or partnership which is a
Subsidiary of such Party or a company
or partnership of which such Party is
a Subsidiary; or a company or
partnership which is another
Subsidiary of a company or partnership
of which such Party is a Subsidiary;
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"Agreement" means this Atlantic Cable Maintenance
and Repair Agreement (ACMA), including
the Schedules attached hereto and any
subsequent amendments made hereto
pursuant to the terms of this
Agreement;
"Agreement Year" means any period of twelve calendar
months ending on 31 December;
"Alternative Cable Ship" means a Cable Ship nominated as such
by a Ship Operator pursuant to
Articles 4.2.4(b) and 6;
"Area" means the ACMA area, the geographical
area which is the subject of this
Agreement and identified as such on
the map attached as Schedule D, which
is bounded in the North by latitude
64DEG.N, the east coast of Greenland
to Cape Farvell, and latitude 60DEG.N
from Cape Farvell to Cape ▇▇▇▇▇▇▇ in
Canada; in the South by latitude
40DEG.S; in the West by the eastern
mainland coasts of North, Central and
South America; and in the East by the
west coast of Norway, latitude 62DEG.N
to the Faeroe Islands, a direct line
from the Faeroe Islands to the
northernmost point of Great Britain,
the west cost of great Britain, a
direct line drawn from Falmouth in
England to Brest in France, the west
coast of France, the coast of
Portugal, the west coast of Spain to
Cape Trafalgar, a direct line drawn
from Cape Trafalgar to Cape Spartel,
the west coast of Africa to the Cape
of Good Hope and thence a direct line
due South to latitude 40DEG.S; the
Management Committee may also agree to
extend the Area further to include
additional Scheduled Cables as
requested by any Maintenance
Authority;
"Appointed Party" means any Party appointed by the
Management Committee to carry out
a specific function under this
Agreement, including but not limited
to: the Central Billing Party, the
Schedule B Party, the Schedule E
Party, the Schedule H Party, the
Schedule K Party and the Schedule L
Party;
"Assigned Port" means the port from which a Cable Ship
is at any given time required to
operate under this Agreement pursuant
to the Ships' Program and which may
include, where appropriate, its Base
Port;
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"Authorised Shipboard
Representative" means the person so designated by a
Maintenance Authority pursuant to
Article 10.2;
"Authorised Shore
Representative" means the person so designated by a
Maintenance Authority
pursuant to Article 10.2;
"Available" means, for a Cable Ship, when it is
not unavailable for any of the reasons
described in Article 7.1 and
"Availability" shall be construed
accordingly;
"Available Ship Days" means those days during an Agreement
Year when the Cable Ships are
Available;
"Base Port" means the port identified as such in
Article 4.1.1, where the relevant
Cable Ship will normally be based;
"Bearer Capacity" means capacity in a Scheduled Cable
which is exclusive of capacity derived
by the use of digital circuit
multiplication equipment or similar
device;
"Cable Ship" means any of the following vessels;
BC Atlantida, which is owned and
operated by TEMASA;
CS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, which is owned and
operated by CWM;
CS Global Link, which is owned by CS
Global Link, L.P. and operated through
its General Partner TCSC;
CS Global Mariner, which is owned by
CS Global Mariner, L.P. and operated
through its General Partner TCSC;
NC ▇▇▇▇ ▇▇▇▇▇▇▇▇, which is owned by
FCR and operated by FT;
CS Sovereign, which is owned by BT and
operated by CWM; for the purpose of
this Agreement, BT shall be deemed to
be the Shipowner;
"Central Billing Party" means the Maintenance Authority
responsible for the performance of all
billing and associated functions under
this Agreement;
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"Confidential Information" means any information related to this
Agreement in whatever form about or
concerning any Party or any of its
Affiliates and any of that Party's
contractors, sub-contractors,
employees, servants or agents
including, but not limited to,
business products and methods of work
of any of the aforesaid persons but
not including any such information
which:
(a) is or becomes generally
available to the public (other
than by reason of a breach of
this Agreement); and/or
(b) is known to the receiving or
acquiring party at the time of
its receipt or acquisition
without restriction; and/or
(c) is subsequently acquired from a
third party on terms that it
may be disclosed and/or used
where such third party is
lawfully entitled to disclose
on such terms; and/or
(d) is required to be disclosed by
a court of law, regulatory
authority or tribunal of
competent jurisdiction;
"C&MA" means, for any Scheduled Cable, the
construction and maintenance
agreement, or equivalent governing
agreement, which has been executed by
the owners of that Scheduled Cable;
"Constructive Total Loss" means a situation where the cost of
repairs to the Cable Ship and/or
replacement thereof equals or exceeds
the insured value;
"Eastern Zone" means that part of the Area which lies
to the East of a direct line drawn
from Reykjanes in south Iceland,
through the approximate geographical
mid-points of any transatlantic
Scheduled Cables which such direct
line crosses, to Belem in Brazil;
"Eastern Zone Party" means any of the Parties which are
listed in Schedule B2;
"Fuel Used In Port While means fuel and lubricating oil used
On Standby" while a Cable Ship is on Standby in
port and the coast of which is not
included in Standing Charges or
Running Costs;
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"LIBOR" means the London Inter-Bank Offer Rate
being the arithmetic mean, rounded to
the nearest one sixteenth of one per
cent, of the offered interest rates
for US $10 million quoted by the
market of five reference banks at 11am
each working day; the banks are
National Westminster Bank, Bank of
Tokyo, Deutsche Bank, Banque Nationale
de Paris and ▇▇▇▇▇▇ Guarantee Trust;
"Maintenance and
Improvement" means work, other than a Repair, which
is carried out on an interruptible
basis on a Scheduled Cable by a Cable
Ship, and which is deemed by the
relevant Maintenance Authority to be
required in order to reduce the
susceptibility of that Scheduled Cable
to future service-affecting faults;
"Maintenance Authorities" means the Parties which are identified
in Schedule B1 and/or B2 as having
either sole or joint responsibility
for the maintenance of a Scheduled
Cable and "Maintenance Authority"
shall mean any one of such Parties;
"Management Committee" means the ACMA Management Committee
established pursuant to Article 3;
"Master" means the person designated as such by
the appropriate Ship Operator and
charged with the responsibility for
the safety and day-to-day operation of
its Cable Ship and safety of Cable
Ship personnel;
"Notional Capacity" means, for a Scheduled Cable, the
quantity of Bearer Capacity which is
identified as such in Schedule B1
and/or B2 and which is either:
(i) specified as the notional
capacity in the relevant
C&MA; or
(ii)for Scheduled Cables not
having a specified notional
capacity, the quantity of
Bearer Capacity which is agreed
as such between the Management
Committee and the relevant
Maintenance Authority in
accordance with the provisions
of Paragraph 3.1.1 of Schedule
B;
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"Operation" means Repair, or Maintenance and
Improvement, or other work of an
interruptible nature performed under
this Agreement;
"Operational Distance" means the distance from its Assigned
Port to the place at which an
Operation is carried out by a Cable
Ship;
"Outside Work" means work outside the terms of
this Agreement carried out by a Cable
Ship and for which neither Standing
Charges nor Running Costs are
chargeable in any manner under this
Agreement;
"Parties" means the parties identified in
Schedule A which have signed this
Agreement on the signature pages
hereto; it includes any party which is
subsequently admitted under Article 27
and has signed an agreement in the
form provided in Schedule N hereto;
"Party" shall mean any one of such
Parties;
"Passage Time" means, as applicable:
(a) the period of elapsed time from
the departure time of a Cable
Ship from its Assigned or Base
Port until its arrival time at
the site of an Operation or
Outside Work; and/or
(b) the period of elapsed time from
the departure time of the Cable
Ship from the site of an
Operation or Outside Work until
its arrival time at its
Assigned or Base Port; and/or
(c) the period of elapsed time from
the departure time of the Cable
Ship from the site of an
Operation or Outside Work until
its arrival time at the site of
a different Operation or
Outside Work; and/or
(d) the period of elapsed time from
the departure time of the Cable
Ship from a specified point in
one Zone until its arrival time
at another specified point in
the same Zone; and/or
(e) the period of elapsed time from
the departure time of the Cable
Ship from a specified point in
one Zone until its arrival time
at a specified point in the
other Zone;
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"Refit" means statutory maintenance work or
any other maintenance work carried out
on a Cable Ship and identified as
"Refit" in the Ships' Program;
"Repair" means work carried out on a Scheduled
Cable by a Cable Ship and which is
deemed by the relevant Maintenance
Authority to be required in order to
remedy a fault suffered by that
Scheduled Cable;
"RFS Date" means, for a Scheduled Cable, the date
at which the relevant Maintenance
Authority and/or its co-owners (if
any) agree to place such Scheduled
Cable into operation for customer
service;
"Running Costs" means incremental costs, which are
over and above Standing Charges and
the cost of Fuel Used In Port While On
Standby, WHICH ARE ASSOCIATED WITH A
SPECIFIC OPERATION OR ACTIVITY and
incurred in connection with the
operation of a Cable Ship and/or other
related activities, including but not
limited to the costs of the following:
DURING AN OPERATION - IN PORT
(a) fuel used;
(b) lubricating oils used;
(c) loading and unloading a
Maintenance Authority's cable,
plant and equipment at a depot
and on a board a Cable Ship;
(d) agency fees for attending
departure/arrival;
(e) immigration charges and local
taxes;
DURING AN OPERATION - AT SEA
(f) fuel used;
(g) lubricating oils used;
(h) additional personnel not
already included in Standing
Charges, and their associated
travel;
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(i) officer and crew overtime;
(j) victualling (either in full if
not already included in
Standing Charges, or for
additional personnel);
(k) port entry/exit charges
(including pilotage, tonnage
dues and light dues);
(l) at-sea insurance premiums;
(m) the Cable Ship's operational
communications charges;
(n) communications charges for the
Maintenance Authority's
representatives;
(o) victualling for the Maintenance
Authority's representatives;
(p) specialist services for weather
forecasting and navigation;
(q) specialist hired services to
assist with an Operation
(including guard boats, barges
and beach equipment);
(r) consumable stores (including
rope, cable stoppers,
damage/lost equipment and
jointing consumables supplied
by the Ship Operator);
(s) insurance deductibles;
(t) special war risk insurance
premiums;
"SCARAB Users Agreement" means the SCARAB III and IV Users'
Agreement dated 28 February 1990;
"Schedule B Party" means the Party appointed, pursuant to
Article 13, to prepare, revise and
distribute Schedules B1 and B2;
"Schedule E Party" means the Party appointed, pursuant to
Article 9.5, to prepare, revise and
distribute Schedule E;
"Schedule H Party" means the Party appointed, pursuant to
Article 20.3, to prepare, revise and
distribute the Ships' Program in the
format given in Schedule H;
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"Schedule K Party" means the Party appointed, pursuant to
Article 20.6, to prepare, revise and
distribute Schedules K1 to K5;
"Schedule L Party" means the Party appointed, pursuant to
Article 20.4 to prepare, revise and
distribute the "ACMA Fault Report" on
an annual basis;
"Scheduled Cables" means the submarine telecommunications
cables, or parts thereof, which are
subject to this Agreement and
identified as such in Schedules B1 and
B2; "Scheduled Cable" shall mean any
one of such Scheduled Cables;
"Ship Operators" means the Parties responsible for the
operation of the Cable Ships and
identified as such in this Article 1.1
for the relevant Cable Ship; "Ship
Operator" shall mean any one of such
Parties;
"Shipowner" means a Party which owns a Cable Ship
and which is identified as such in
this Article 1.1 for the relevant
Cable Ship;
"Ships' Program" means the graphical representation
provided pursuant to Article 4.3 and
20.3, and in the format of the pro
forma which is attached as Schedule H,
of the agreed Availability for the
Cable Ships and/or Alternative Cable
Ships (if any) for the relevant
Agreement Year;
"Ship Schedule" means any of the Schedules C1 to C6
inclusive which contain, among other
things:
(a) certain operating conditions
under which the Ship Operator
makes its Cable Ship available
for the purposes of this
Agreement;
(b) a performance specification for
the relevant Cable Ship; and
(c) certain information required
for the purpose of calculating
Cable Ship costs;
"Spare Submersible Plant" means spare cable, repeaters,
branching units, joint housings,
terminations, jointing kits and
consumables to be used in an
Operation;
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"Specific Practices" means any submarine cable maintenance
practices and equipment which are not
included in Standard Practices;
"Specific Scheduled Cable" means a Scheduled Cable which is
identified as such in Annex 1 to
Schedule E and which is not a Standard
Scheduled Cable and which requires the
use of Specific Practices in its
maintenance;
"Standard Practices" means the submarine cable maintenance
practices and equipment which are
specified in Schedule E and which the
Cable Ships are capable of supporting;
"Standard Scheduled Cable" means a Scheduled Cable which is
identified as such in Annex 1 to
Schedule E and which is capable of
being maintained in accordance with
the Standard Practices;
"Standby" means any period when a Cable Ship is
not engaged on an Operation but is
Available;
"Standing Charges" means the annual charge as specified
in Schedule F, which is charged by a
Ship Operator in connection with its
Cable Ship and its associated
services; Standing Charges include in
particular, but are not limited to:
(a) depreciation on the capital
cost of the Cable Ship and
its equipment;
(b) interest on the capital cost of
the Cable Ship and its
equipment;
(c) the cost of repairs to the
Cable Ship and its equipment
and any essential renewals of
its equipment;
(d) the cost of Refit;
(e) the salaries, wages and
allowances (including liability
for pension contributions) and
travel costs of the permanent
officers and crew (as specified
in the relevant Ship Schedule)
of the Cable Ship;
(f) the cost of providing victuals,
water, shore power, stores and
other services to the normal
standards of each Ship
Operator;
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(g) the cost of port charges and
agency fees not included in
Running Costs, Base Port
charges and associated
headquarters charges;
(h) the cost of insurance
(excluding "at sea" insurance
which is included in Running
Costs) against such risks as
the Ship Operator decides to
insure by contract; or where
the Ship Operator decides not
to insure, an amount in lieu of
the cost of insurance to
compensate the Ship Operator
for carrying its own risks;
(i) the cost of all universal
jointing and in-service repair
equipment for Standard
Scheduled Cables which is
required for the Cable Ship, as
specified in the relevant Ship
Schedule;
"Subsidiary" means a company which is a subsidiary
of another company if the latter owns
legally or beneficially, directly or
indirectly, the shares of the former,
such share having the right to 50% or
more of the voting rights under
ordinary circumstances in a general
meeting of shareholders; or a
partnership which is owned by another
entity if such entity owns at least
50% of the partnership's units;
"Total Loss" means a situation where the Cable Ship
is destroyed or so damaged as to cease
to be a thing of the kind insured, or
where the cost of repairs and/or
replacement equals or exceeds the
insured value;
"UJ" means universal jointing which is
required for the Cable Ships, as
specified in Schedule E;
"UQJ" means universal quick jointing which
is required for the Cable Ships, as
specified in Schedule E;
"Western Zone" means that part of the Area which lies
to the West of a direct line drawn
from Reykjanes in south Iceland,
through the approximate geographical
mid-points of any transatlantic
Scheduled Cables which such direct
line crosses, to Belem in Brazil;
"Western Zone Party" means any of the Parties which are
listed in Schedule B1;
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"Wilful Misconduct" means any act (whether of commission
or omission), approval or
representation made by a Party
pursuant to this Agreement and where
such act, approval or representation
is based upon the intentional or
reckless disregard of good and prudent
submarine telecommunications cable
maintenance practice but shall not
include any error of judgement or
mistake made by any contractor,
employee, agent or director in the
exercise in good faith of any
function, authority or discretion
conferred upon a Party under this
Agreement;
"Zone" means either the Eastern Zone or the
Western one;
"Zone Party" means either an Eastern Zone Party or
a Western Zone Party..
1.2 INTERPRETATION
1.2.1 The Schedules attached and listed above form part of this
Agreement and any Article which contains a reference to a Schedule
shall be read as if the Schedule were set out at length in the body of
the Article itself. Any reference to a Schedule is to a Schedule of
this Agreement. Except where expressly stated otherwise, where a
Schedule has been updated or amended pursuant to this Agreement any
reference to that Schedule is a reference to the Schedule then
currently in force.
1.2.2 The headings in this Agreement are inserted for convenience only
and shall be ignored in construing this Agreement.
1.2.3 Any reference to an Article is a reference to an Article of this
Agreement.
1.2.4 In this Agreement, where the sense requires, words denoting the
singular 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.
1.2.5 This Agreement represents the entire understanding between the
Parties in relation to the subject matter of this Agreement and
supersedes all prior provisions, undertakings and agreements, whether
oral or written, relating to these matters.
1.2.6 The Parties hereby agree that this Agreement cancels and
supersedes the previous Atlantic Cable Maintenance and Repair Agreement
dated 1 April 1989.
ARTICLE 2 GENERAL CONDITIONS
2.1 Subject to the terms of this Agreement, the Ship Operators agree to
provide, and the Maintenance Authorities agree to pay the costs (as
defined in Article 15) of, the Cable
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Ships and associated cable maintenance services which form the subject
of this Agreement.
2.2 The Parties warrant that they are duly authorised to enter into this
Agreement on behalf of themselves and on behalf of and in the name of
the co-owners of the Scheduled Cables for which they are the
Maintenance Authority and to give undertakings on behalf of and in the
name of themselves and their co-owners.
2.3 Subject to the terms herein, this Agreement shall be open to all
entities wishing to become a Party and which have responsibility for
the maintenance of a submarine telecommunications cable which has been
laid within the Area. Any entity wishing to become a Party and thereby
enter a cable into this Agreement must bring the whole of that part of
said cable which lies within the Area and for which it has maintenance
responsibility into the Agreement as a Scheduled Cable. The bringing of
any cable or part of a cable into this Agreement by any Party shall not
however create an obligation on that Party to bring any other cable for
which that entity has a maintenance responsibility, into this
Agreement.
2.4 A Maintenance Authority may propose for inclusion in this Agreement as
a Scheduled Cable a cable which is not situated within the Area. The
Management Committee shall then consider and either approve or not
approve the proposal.
2.5 Nothing in this Agreement shall prevent a Maintenance Authority from
arranging, outside of the terms of this Agreement and at such
Maintenance Authority's own expense, a repair or other work on a
Scheduled Cable for which it is responsible.
2.6 No cable shall be permitted to be brought into this Agreement as a
Scheduled Cable unless, at the date of its intended entry into this
Agreement, it is reasonably demonstrated to the Management Committee
that such cable is free of any fault in its submerged plant that would
affects its ability to carry telecommunications traffic.
2.7 The parties agree that where a cable is brought into this Agreement as
a Scheduled Cable and such Scheduled Cable has, at the date of its
entry into this Agreement, already been qualified for jointing by means
of existing UJ or UQJ technology, the Ship Operator shall implement the
necessary additional jointing training and/or tooling required by the
crew of a Cable Ship to permit that Cable Ship to carry out a Repair to
such Scheduled Cable. The costs of such additional training and/or
tooling is required by the crew of a Cable Ship assigned to the Western
Zone, in proportion to the Accounting Units allocated to them in
Schedule B1, or borne by the Eastern Zone Parties, if such additional
training and/or tooling is required by the crew of a Cable Ship
assigned to the Eastern Zone, in proportion to the Accounting Units
allocated to them in Schedule B2. The provisions of this Article 2.7
shall also apply to a Scheduled Cable which becomes qualified for
jointing by means of existing UJ or UQJ technology during the term of
this Agreement.
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2.8 Notwithstanding the provisions of Articles 6 and 14, in the event of
the Parties requiring a cable ship, in addition to those Cable Ships
listed in Article 1.1, to be permanently entered into this Agreement
such additional cable ship shall only be entered subject to the
following conditions:
2.8.1 an amendment shall required to this Agreement in accordance with
Article 27.1; and
2.8.2 such additional cable ship shall be selected for inclusion in
this Agreement only by means of an open tender invitation and
adjudication exercise which shall be offered to all known qualified
cable ship suppliers.
2.9 A cable shall be permitted to be brought into this Agreement as a
Scheduled Cable prior to its RFS Date but after the completion of its
laying operation. However, any Repair to such Scheduled Cable which is
carried out prior to its RFS Date shall be carried out on an
interruptible basis. The Standing Charges applicable to such Scheduled
Cable shall be calculated and billed to the relevant Maintenance
Authority on a pro rata daily basis for the period from its date of
introduction into this Agreement until the RFS Date of such Scheduled
Cable. Following the RFS Date of such Scheduled Cable, the normal
procedures for the calculation and billing of Standing Charges shall
apply.
2.10 Subject to Article 2.11, in the event that less than all of the parties
listed in Schedule A sign this Agreement, this Agreement shall be
effective only for those parties which have signed this Agreement.
Those parties listed in Schedule A that fail to sign this Agreement
shall not be deemed to be Parties to this agreement and none of the
cables for which they are the sole Maintenance Authority shall be
deemed to be Scheduled Cables. Any Scheduled Cable for which such
non-signing party is a joint maintenance authority shall be deemed to
be a Scheduled Cable only if such non-signing party's joint Maintenance
Authority HAS signed this Agreement and agrees, for the purpose of this
Agreement, to be deemed the sole Maintenance Authority for such
Scheduled Cable.
2.11 This Agreement shall not come into force until:
(a) all Ship Operators have signed this Agreement; and
(b) Maintenance Authorities listed in Schedule A having
responsibility for at least 95% of the Accounting Units have
also signed this Agreement.
2.12 The coming into force of this Agreement pursuant to Article 2.11 shall
be confirmed in writing to all Parties listed in Schedule A by the
chairman of the Management Committee.
ARTICLE 3 THE MANAGEMENT COMMITTEE
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3.1 Each Party shall be entitled to be represented on the Management
Committee.
3.2 Subject to the terms of this Agreement, the functions of the Management
Committee shall be as follows.
3.2.1 To co-ordinate and ensure the efficient management of all actions
required by this Agreement.
3.2.2 To ensure that each Cable Ship is appropriately assigned for the
purposes of this Agreement and in particular to inform the Parties of
the location of an Alternative Cable Ship if a Cable Ship if a Cable
Ship is not Available or is temporarily removed from this Agreement for
any reason.
3.2.3 To decide upon any applications by a Party or a third party as
required or permitted by this Agreement. For the avoidance of doubt,
with respect to applications by maintenance authorities to become
parties to this Agreement, the consent of the Management Committee
shall not be unreasonably withheld.
3.2.4 To provide the opportunity for any Party to advise the other
Parties on any difficulties experienced in maintaining Scheduled
Cables.
3.2.5 To discuss non-binding recommendations on the standardisation of
Repair techniques and the development of new techniques, and authorise
such recommendations as necessary.
3.2.6 To discuss non-binding recommendations for changes to the list of
Cable Ship basic facilities detailed in Schedule E, and authorise such
recommendations as necessary.
3.2.7 To appoint or remove at any time and from time to time the
Central Billing Party.
3.2.8 To appoint or remove at any time and from time to time the
Schedule B Party to be responsible for the preparation and revision of
Schedules B1 and B2 and the distribution of the same to the Parties and
the Central Billing Party pursuant to Article 13, and to review as
necessary and approve said Schedules.
3.2.9 To appoint or remove at any time and from time to time the
Schedule E Party to be responsible for the preparation and revision of
Schedule E and the distribution of the same to the Parties pursuant to
Article 9.5, and to review as necessary and approve said Schedule E.
3.2.10 To appoint or remove at any time and from time to time the
Schedule H Party to be responsible for the preparation, revision and
distribution of the Ships' Program.
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3.2.11 To review as necessary and approve the Ships' Program prepared
pursuant to Articles 4.3 and 20.3.
3.2.12 To appoint or remove at any time and from time to time the
Schedule K Party to be responsible for notifying the Maintenance
Authorities of relevant Cable Ship movements pursuant to Article 20.6.
3.2.13 To appoint or remove at any time and from time to time the
Schedule L Party to be responsible for the preparation, revision and
distribution of the annual "ACMA Fault Report" pursuant to Article
20.4.
3.2.14 To monitor the working of this Agreement and to discuss
non-binding recommendations for suggested amendments to this Agreement
and implement, such amendments as necessary in accordance with the
terms of this Agreement.
3.2.15 To monitor periodically, annually or as necessary, the
distribution of Cable Ship coverage as detailed in Article 4.
3.2.16 To perform annual budget reviews.
3.2.17 To agree with the relevant Maintenance Authority the quantity of
Bearer Capacity which will form the Notional Capacity applicable to any
Scheduled Cable not having a specified notional capacity.
3.3 To assist it in carrying out its functions, the Management Committee
may establish such sub-committees and working groups as it considers
necessary or appropriate.
3.4 The procedures of the Management Committee shall be as follows:
3.4.1 Management Committee meetings shall be held as often as
circumstances require, but not less than once a year, at a time and
place convenient to a majority of the members.
3.4.2 No meeting of the Management Committee may take place without a
quorum and a quorum for any Management Committee meeting shall consist
of at least 50% of all Maintenance Authorities, where such Maintenance
Authorities also have responsibility, or hold proxies for, at last 70%
of the total Accounting Units as shown in Schedules B1 and B2.
3.4.3 A Maintenance Authority shall be elected to serve as chairman for
a term of twelve months by a simple majority of the votes cast by the
members of the Management Committee present at the annual meeting in
accordance with Article 3.4.4. The Maintenance Authority which is
elected chairman shall not thereby lose its representation of the
Management Committee, but shall be entitled to have additional
representatives who may express the opinions of that Party and may cast
that Party's vote.
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3.4.4 Decisions by the Management Committee shall be subject, in the
first place, to consultation among the Parties which shall make all
reasonable effort to reach unanimous agreement with respect to the
matters to be decided. However, in the event that agreement cannot be
reached, the decision shall be taken on the basis of a vote. The vote
shall be carried by a two-thirds majority of the votes cast and the
number of votes cast by each Maintenance Authority, either in person at
the meeting or by proxy, shall be considered to be equal to the total
number of the Accounting Units in Schedules B1 and B2 which are
assigned to that Maintenance Authority.
3.4.5 If a Management Committee decision has to be taken before a
meeting can be held, the chairman shall consult with all of the Parties
inviting them to confirm their position in writing within 14 days of
the chairman's request. Such consultation and response shall be carried
out by fax, or such other medium as may be agreed by the Management
Committee. Any decision so taken may be implemented as if taken at a
meeting. Formal voting on such decision, in accordance with Article
3.4.4, shall only be required if requested by one or more of the
Parties. The chairman shall give prompt notice of the results of any
such decision taken by correspondence in this way, and any decision so
taken shall be binding on the Parties.
3.4.6 No decision of the Management Committee, or any sub-committee or
working group established by the Management Committee, shall over-ride
any provision of this Agreement or in any way diminish the rights of,
or prejudice the interests granted to, any Party to this Agreement.
3.4.7 Notwithstanding Articles 3.4.4 and 3.4.5 above, issues affecting
only the Eastern Zone shall be decided only by the Eastern Zone Parties
and issues affecting only the Western Zone shall be decided only by the
Western Zone Parties who shall reach a decision in accordance with the
provisions of Articles 3.4.4 and 3.4.5 but with the number of votes
cast by each Party being considered to be equal to the number of the
Accounting Units in either Schedule B1 OR B2 which are assigned to that
Party, depending on whether the matter to be decided is a Western Zone
matter or an Eastern Zone matter, respectively.
ARTICLE 4 CABLE SHIP PORTS, ASSIGNMENT AND SHIPS' PROGRAM
4.1 BASE PORTS
4.1.1 The Cable Ships and their respective Base Ports are as shown in
the following table:
Cable Ship Base Port
---------- ---------
BC Atlantida Vigo, Spain;
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CS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Ireland Island, Bermuda;
CS Global Link Baltimore, Maryland, USA;
CS Global Mariner Baltimore, Maryland, USA;
NC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Brest, France;
CS Sovereign Portland, United Kingdom.
4.1.2 Any Ship Operator may change the Base Port of its Cable Ship
after having first obtained the necessary approval of the Management
Committee, the Eastern Zone Parties or the Western Zone Parties as
appropriate pursuant to Articles 3.4.4 to 3.4.7 inclusive, which
approval shall not be unreasonably withheld or delayed. Any additional
costs incurred by such Ship Operator as a result of such change of Base
Port shall be borne wholly by the relevant Ship Operator.
4.1.3 Given that new Scheduled Cables may be introduced into parts of
the Area not well-covered at the inception of this Agreement, a
Maintenance Authority may, after having first obtained the necessary
apporval of the Management Committee, the Eastern Zone Parties or the
Western Zone Parties as appropriate pursuant to Articles 3.4.4 to 3.4.7
inclusive, request a Ship Operator to change the Base Port of its Cable
Ship. Any change of Base Port shall also require the agreement of the
relevant Ship Operator which shall not be unreasonably withheld or
delayed and, upon being so requested, the relevant Ship Operator shall
be entitled upon application to the Management Committee to
re-imbursement of any reasonable and directly-incurred costs which
arise from such request. The cost of such re-imbursement shall be borne
by the Eastern Zone Parties in the event that such Cable Ship is
re-assigned to a Base Port in the Eastern Zone pursuant to this Article
4.1.3, or the Western Zone Parties in event that the Cable Ship is
re-assigned to a Base Port in the Western Zone pursuant to this Article
4.1.3, in proportion to the Accounting Units allocated to them in
Schedule B1 or B2 as appropriate.
4.1.4 A Ship Operator may assign a Cable Ship to another Assigned Port
on a temporary basis. Such assignment shall require the necessary
approval of the Management Committee, the Eastern Zone Parties or the
Western Zone Parties as appropriate pursuant to Articles 3.4.4 to 3.4.7
inclusive. In any case, such approval by the relevant Parties shall not
be unreasonably withheld or delayed.
4.1.5 After having first obtained the necessary approval of the
Management Committee, the Eastern Zone Parties or the Western Zone
Parties as appropriate pursuant to Articles 3.4.4 to 3.4.71 inclusive,
the Eastern Zone Parties or the Western Zone Parties may request the
Ship Operators to assign a Cable Ship to another Assigned Port on a
temporary basis. Such assignment shall require the agreement of the
relevant Ship
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Operator which shall not be unreasonably withheld or delayed. In the
event that such assignment to another Assigned Port, other than to the
relevant Base Port, is requested pursuant to this Article 4.1.5, the
relevant Ship Operator shall be entitled upon application to the
Management Committee to re-imbursement of any reasonable and
directly-incurred costs which arise from such request. The cost of such
re-imbursement shall be borne by the Eastern Zone Parties in the event
that the Cable Ship is re-assigned to an Assigned Port in the Eastern
Zone pursuant to this Article 4.1.5, or the Western Zone Parties in
event that the Cable Ship is re-assigned to an Assigned Port in the
Western Zone pursuant to this Article 4.1.5, in proportion to the
Accounting Units allocated to them in Schedule B1 or B2 as appropriate.
4.1.6 After having first obtained the necessary approval of the
Management Committee, the Eastern Zone Parties or the Western Zone
Parties as appropriate pursuant to Articles 3.4.4 to 3.4.7 inclusive,
any group of Maintenance Authorities may request a Ship Operator to
assign a Cable Ship to another Assigned Port on a temporary basis. Such
assignment shall require the agreement of the relevant Ship Operator
which shall not be unreasonably withheld or delayed. In the event that
such assignment to another Assigned Port, other than to the relevant
Base Port, is requested by such group of Maintenance Authorities, the
relevant Ship Operator shall be entitled upon application to the
Management Committee to re-imbursement of any reasonable and
directly-incurred costs which arise from such request. The cost of such
re-imbursement shall be borne by that group of Maintenance Authorities
requesting such Cable Ship re-assignment pursuant to this Article
4.1.6, in proportion to the Accounting Units allocated to them in
Schedule B1 or B2 as appropriate.
4.2 ASSIGNMENT OF CABLE SHIPS
4.2.1 Subject to the terms of Article 4.1, the assignment of Cable
Ships to Zones shall be as indicated in the following table:
Eastern Zone Western Zone
------------ ------------
CS Sovereign; CS Global Link
NC ▇▇▇▇ ▇▇▇▇▇▇▇▇; CS Global Mariner;
BC Atlantida CS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
4.2.2 Subject to the provisions of Article 4.2.3, not less than two nor
more than three Cable Ships shall be Available in each Zone for the
Repair or Maintenance and Improvement of Scheduled Cables.
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4.2.3 The Eastern Zone Parties may for the Eastern Zone, or the Western
Zone Parties may for the Western Zone, agree in writing and in advance,
that only one Cable Ship shall be Available in that Zone for periods
not exceeding 15 (fifteen) days.
4.2.4 In the circumstances when the minimum requirements specified in
Article 4.2.2 for the Availability of Cable Ships cannot be met, and no
agreement has been given in accordance with Article 4.2.3, the Ship
Operators shall propose to the Management Committee either:
(a) a temporary reassignment of Cable Ships between the Zones; or
(b) the assignment to the Agreement of an Alternative Cable Ship
as detailed in Article 6;
and any such temporary reassignment of a Cable Ship between Zones, or
use of an Alternative Cable Ship, shall be subject to the approval of
the Management Committee.
4.3 SHIPS' PROGRAM
4.3.1 Pursuant to Article 20.3 and not later than two months before the
beginning of each Agreement Year, the Schedule H Party shall prepare a
schedule of Availability for the Cable Ships. This schedule of
Availability shall take into account all periods of Standby, Refit and
Outside Work and shall indicate the level of Cable Ship coverage.
4.3.2 The schedule of Availability described in Article 4.3.1 shall,
pursuant to Article 20.3 and not later than two months before the
beginning of each Agreement Year, be presented to the Management
Committee in the form of a draft Ships' Program.
4.3.3 The Management Committee shall consider the draft Ships' Program
and either approve it as submitted or refer it back to the Schedule H
Party for revision. When approved, it shall become the Ships' Program.
4.3.4 Proposals to change the Ships' Program may be made by any of the
Maintenance Authorities and/or the Ship Operators to the Management
Committee which shall decide to approve or not approve such proposals.
4.3.5 All approved changes to the Ships' Program shall be reflected in
the next issue of the Ships' Program.
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ARTICLE 5 OPERATIONAL USE OF CABLE SHIPS
PRIMARY USE AND CHARGES
5.1 The primary use of the Cable Ships shall be for Repair. For the
duration of a Repair all Running Costs, including those for Passage
Time and any applicable loading and unloading time, or mobilisation and
de-mobilisation time, shall be borne by the Maintenance Authority
responsible for the Scheduled Cable undergoing such Repair. Standing
Charges shall be borne in accordance with the provisions of Article 16.
5.2 Subject, however, to the requirements of Articles 4.2.2 and 4.2.3 being
satisfied, other Cable Ship activities may include the following:
(a) Maintenance and Improvement, on an interruptible basis; or
(b) other work of an interruptible nature which work may include,
but not be limited to, the recovery and/or disposal of a
former Scheduled Cable; or
(c) cable working exercises; or
(d) movement between or within Zones: or
(e) Refit; or
(f) Outside Work;
and the Cable Ship costs and their apportionment applicable to each of these
types of activity shall be as follows.
MAINTENANCE AND IMPROVEMENT OF SCHEDULED CABLES
5.2.1 For the duration of an Operation for Maintenance and Improvement
all Running Costs, including those for Passage Time and any applicable
loading and unloading time, or mobilisation and de-mobilisation time,
shall be borne by the Maintenance Authority responsible for the
Scheduled Cable undergoing such Maintenance and Improvement. Standing
Charges shall be borne in accordance with the provisions of Article 16.
OTHER WORK OF AN INTERRUPTIBLE NATURE
5.2.2 For the duration of any other work of an interruptible nature as
approved by the Management Committee, all Running Costs, including
those for Passage Time and any applicable loading and unloading time,
or mobilisation and de-mobilisation time, shall be borne by the
Maintenance Authority responsible for such work or, in the case of the
recovery or disposal of a former Scheduled Cable, by the former
Maintenance Authority
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responsible for such work. In any event, Standing Charges shall be
borne in accordance with Article 16.
CABLE WORKING EXERCISES
5.2.3 A Ship Operator may perform a cable working exercise for the
purpose of crew training and/or equipment proving provided that:
(a) the relevant Ship Operator has provided the Management
Committee, in advance, with details of the nature and location
of the proposed cable working exercise; and
(b) approval has first been obtained from the Eastern Zone Parties
if the relevant Cable Ship is assigned to the Eastern Zone or
the Western Zone Parties if the relevant Cable Ship is
assigned to the Western Zone, which approval shall not be
unreasonably withheld or delayed; and
(c) for the duration of such cable working exercise, the
requirements of Articles 4.2.2 and 4.2.3 are satisfied; and
(d) the Cable Ship. for which such cable working exercise is being
requested, has not been involved in any relevant Operation or
Outside Work during the previous three months; and
(e) such cable working exercise is carried out on an interruptible
basis.
During such cable working exercise, Standing Charges and Running Costs
shall be borne in accordance with Articles 16 and 17. Such cable
working exercises performed by any one Cable Ship shall not exceed 20
(twenty) days in total for all exercises performed during any Agreement
Year.
MOVEMENT BETWEEN OR WITHIN ZONES
5.2.4 During periods of Availability for work on Scheduled Cables, and
when it becomes necessary for a Cable Ship, with the approval of the
Management Committee, to move between Zones, Standing Charges and
Running Costs shall be borne in accordance with Articles 16 and 17.
5.2.5 During periods of Availability for work on Scheduled Cables, and
when it becomes necessary for a Cable Ship, with the approval of the
relevant Zone Parties, to move within a Zone, Standing Charges and
Running Costs shall be borne in accordance with Articles 16 and 17.
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REFIT
5.2.6 Standing Charges for periods when a Cable Ship is undergoing
Refit shall be borne in accordance with Article 16. Any Running Costs
incurred during a period of Refit, commencing from the date of the
approval by the Management Committee of the release of the Cable Ship
from Availability and continuing until the date of written notification
by the relevant Ship Operator to the Management Committee that the
Cable Ship is again Available for work on Scheduled Cables, shall be
borne by the relevant Ship Operator. Such Refit periods shall not
exceed 90 (ninety) days in total for each of the Cable Ships during the
term of this Agreement. Any period of Refit for any one Cable Ship
which is in excess of 90 (ninety) days during the term of this
Agreement shall be considered as Outside Work and Standing Charges
and/or Running Costs for such excess period shall not be charged under
this Agreement
OUTSIDE WORK
5.2.7 Subject to the requirements of Articles 4.2.2 and 4.2.3 being
satisfied, a Cable Ship may be used with the consent of the Management
Committee which consent shall not be unreasonably withheld or delayed,
for Outside Work. In addition:
5.2.7.1 no such consent by the Management Committee shall be
required in the case of the requisition of a Cable Ship by
order of a government;
5.2.7.2 for the duration of such Outside Work including any
Passage Time and any applicable loading and unloading time
pursuant to Article 5.2.8, or mobilisation and de-mobilisation
time, Standing Charges and Running Costs shall not be charged
under this Agreement except as provided for in Article
5.2.8.2; additionally, a credit for Standing Charges for the
period of Outside Work, calculated in accordance with Article
16.5, shall be applied.
LOADING AND UNLOADING TIME FOR OUTSIDE WORK
5.2.8 In order to undertake Outside Work, it may be necessary for the
Cable Ship to unload, and subsequently to re-load, submersible plant
being held on board for the Repair of Scheduled Cables. In this event,
the Cable Ship costs and their apportionment applicable to such loading
and unloading time shall be as follows.
5.2.8.1 For the duration of such unloading period, Standing
Charges and Running costs shall not be charged under this
Agreement.
5.2.8.2 For the duration of such reloading period (when the
Cable Ship is Available for work on Scheduled Cables),
Standing Charges shall be charged under this Agreement and
borne in accordance with Article 16. Running Costs or
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Fuel Used In Port While On Standby incurred during such
re-loading period shall not be charged under this Agreement.
ARTICLE 6 USE OF ALTERNATIVE CABLE SHIPS
6.1 Subject to the approval of the Management Committee, and for such a
period as the Management Committee shall approve, a Ship Operator may
propose another cable ship from either its own fleet or another fleet
as an alternative to its Cable Ship.
6.2 Any such Alternative Cable Ship shall comply with the provisions of
Article 11.1 of this Agreement and shall be considered to be a Cable
Ship for the purposes of this Agreement for such period as is approved
by the Management Committee.
6.3 Any such Alternative Cable Ship shall throughout the period concerned
operate from the Base Port of the Cable Ship which it temporarily
replaces or from such other Assigned Port as may be approved by the
Management Committee.
6.4 The Standing Charges and Running Costs of the Alternative Cable Ship
shall not exceed those of the Cable Ship which it temporarily replaces
and shall, for the duration of the temporary replacement, be
substituted for the Standing Charges and Running Costs of the Cable
Ship being temporarily replaced.
6.5 If an Alternative Cable Ship is damaged to such an extent as to have to
undergo repairs, the provisions of Article 18 shall not apply to such
Alternative Cable Ship.
ARTICLE 7 AVAILABILITY OF CABLE SHIPS
7.1 Each Ship Operator shall operate its Cable Ship so as to have it
available for use at all times for work on Scheduled Cables, except in
the following circumstances:
7.1.1 while the Cable Ship is undergoing Refit, except as provided for
in Article 7.2; or
7.1.2 from the starting date of any Outside Work until its conclusion
in accordance with Articles 5.2.7 and 5.2.8; or
7.1.3 while the Cable Ship is unavailable due to circumstances outside
the control of the Ship Operator or by reason of force majeure which
shall include, but is not restricted to, acts of God or of the public
enemy, acts of governments, insurrections, fires, floods, epidemics,
quarantine restrictions, freight embargoes, strikes or unusually severe
weather; or
7.1.4 while the Cable Ship is damaged to the extent that it cannot
perform Repairs or Maintenance and Improvement as further detailed in
Articles 18 and 19, or it becomes a Total Loss or a Constructive Total
Loss.
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7.2 In the event that no other Cable Ship is available to carry out a
Repair, a Maintenance Authority may request that a Cable Ship interrupt
a period of Refit and be re-mobilised as soon as practicable to carry
out such Repair. Upon receiving such a request, the Ship Operator
concerned shall advise the Maintenance Authority of:
(a) the time necessary to bring the Cable Ship into class and
condition so that it can safely sail; and
(b) the estimated cost of releasing the Cable Ship from Refit; and
(c) an estimate of any incremental charges that may be incurred as
a result of the interruption to the Refit.
All costs incurred by the Ship Operator as a result of such an interruption to
Refit shall be charged as Running Costs and be borne by the Maintenance
Authority requesting the interruption.
ARTICLE 8 OPERATING PROCEDURES
8.1 CABLE SHIP NOTIFICATION PROCEDURE
8.1.1 A Maintenance Authority requiring a Cable Ship to carry out a
Repair shall notify the Ship Operator concerned in accordance with the
notification procedure contained in the relevant Ship Schedule and the
Ship Operator shall take the necessary action to ensure that the Cable
Ship mobilises and sails to the required site of the Repair in
accordance with the performance specification contained in the relevant
Ship Schedule. The Maintenance Authority concerned shall also copy such
notification by fax and without delay to the Management Committee. The
relevant Ship Operator shall confirm receipt of such notification in
accordance with the terms of the relevant Ship Schedule.
8.1.2 The relevant Maintenance Authority or a Ship Operator, as
appropriate, shall give the Management Committee as much advance
written notice as possible of any planned Operation, Outside Work,
Refit or any other expected change in the operational status of a Cable
Ship.
8.1.3 Not less than 1 (one) and not more than 2 (two) days prior to the
planned commencement date of any planned Operation, Outside Work, Refit
or any other expected change in the operational status of a Cable Ship
the relevant Ship Operator shall notify the Management Committee
thereof by fax, providing such information as is relevant and available
at that time.
CABLE SHIP ASSIGNMENT AND REPAIR PRIORITY
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8.2 If, at the time of receipt of notification from a Maintenance Authority
pursuant to Article 8.1, the chosen Cable Ship has already been
instructed to carry out another Repair, the Maintenance Authorities
concerned and the Ship Operators concerned shall consult with one
another to agree which Cable Ship should carry out which Operation.
8.3 If, pursuant to Article 8.2, no agreement is reached by the Maintenance
Authorities concerned and no other suitable Cable Ship is available,
first choice of Cable Ship to carry out the Repair shall be given to
the Maintenance Authority which is responsible for the Scheduled Cable
which has the higher aggregate number of Accounting Units in Schedules
B1 and B2 taken together. Such priority of choice may be exercised at
any time up to the point when the chosen Cable Ship has arrived at the
site of the Repair on the Scheduled Cable having the lower number of
Accounting Units and has engaged such Scheduled Cable on its grapnel or
other recovery device. In the event that such priority is exercised,
the chosen Cable Ship shall be obliged, if requested by the Maintenance
Authority not having been granted such priority, to return to its
Assigned Port for the purpose of off-loading Spare Submersible Plant
proper to the Scheduled Cable which has not been granted such priority.
8.4 Notwithstanding the provisions of Article 8.3, where a Scheduled Cable
concerned forms part of a multiple-segment cable system, the Accounting
Units to be considered for the purpose of Article 8.3 shall be the sum
of the Accounting Units for all Scheduled Cables that constitute such
multiple-segment cable system and whose traffic-carrying capacities are
adversely affected by the failure necessitating the Repair.
ARTICLE 9 OPERATIONAL RESPONSIBILITIES
9.1 The responsibility for planning and directing an Operation or part
thereof shall rest with the Ship Operator concerned unless the
Maintenance Authority concerned has elected in writing to assume that
responsibility and has nominated its Authorised Shipboard
Representative or its Authorised Shore Representative in accordance
with Article 10.2.
9.2 Whether or not such an election has been made pursuant to Article 9.1:
9.2.1 each Cable Ship shall at all times remain under the direct
control of the Ship Operator and nothing in this Agreement shall be
construed as a demise or charter of a Cable Ship to the Maintenance
Authority, jointly or severally; and
9.2.2 nothing in this Agreement shall be deemed to reduce, interfere
with, or otherwise impair the full authority and responsibility of the
Master of a Cable Ship for its safe operation and navigation, or for
the safety of those on board.
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REPAIR PRACTICES
9.3 Each Ship Operator shall ensure that its Cable Ship is capable of
carrying out any necessary Repair or Maintenance and Improvement on all
Standard Scheduled Cables.
9.4 For Specific Scheduled Cables, it shall be the responsibility of the
Maintenance Authority responsible for each such Specific Scheduled
Cable to instruct the Ship Operator to carry out any necessary Repair
or Maintenance and Improvement in accordance with relevant Specific
Practices supplied to that Ship Operator by the relevant Maintenance
Authority. If no such instructions on Specific Practices are received,
the normal practices of the Ship Operator shall be followed.
9.5 The Management Committee shall, with that Party's consent, appoint one
of the Parties to be the Schedule E Party whose function shall be to
prepare, revise and distribute Schedule E.
9.6 A Maintenance Authority which is responsible for a Specific Scheduled
Cable may apply to the Management Committee to have such Specific
Scheduled Cable re-categorised as a Standard Scheduled Cable and
included as such in Annex 1 to Schedule E. The Management Committee
shall then consider the costs and benefits deriving from the approval
of such application as well as the technical specification and state of
qualification of such Specific Scheduled Cable and either approve or
not approve such application. If required, the Management Committee
shall then instruct the Schedule E Party to revise Schedule E to take
account of any change to Standard Practices arising from the
re-categorisation of a Specific Scheduled Cable to a Standard Scheduled
Cable and thereafter to distribute such amended Schedule E to the
Parties.
AUTHORISATIONS AND CONSENTS
9.7 When an Operation takes place in waters which are regulated by a
government authority, it shall be the responsibility of the relevant
Ship Operator to declare, in writing and without any avoidable delay,
to the marine authority concerned the information necessary to obtain
such authorisations and consents as may be required, and to apply for
and obtain such authorisations and consents necessary to the carrying
out of the Operation. In addition:
9.7.1 unless authorised to do so by the relevant Maintenance Authority,
the Ship Operator shall not permit the relevant Cable Ship to sail
prior to the receipt of the necessary authorisations and consents;
9.7.2 the relevant Maintenance Authority shall provide all reasonable
support, as requested by the Ship Operator, in the obtaining of the
necessary authorisations and consents;
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9.7.3 the Ship Operator shall inform the relevant Maintenance Authority
if the necessary authorisations and consents have not been received
after 2 (two) working days from the date of making the application to
the relevant marine authority;
9.7.4 the Ship Operator shall not be liable for any delay which may
occur in the obtaining of the necessary authorisations and consents,
where the delay is caused by reasons beyond the control of the Ship
Operator.
QUALITY ASSURANCE
9.8 If so requested by a Maintenance Authority, a Ship Operator shall make
available for inspection its quality plan which addresses the quality
assurance requirements of this Agreement.
ARTICLE 10 REPRESENTATIVE OF THE MAINTENANCE AUTHORITIES
10.1 The Maintenance Authority for whom any Operation is being carried out
may assign to the Cable Ship concerned one or, if sufficient
accommodation is available, more than one representative for the
duration of that Operation. However, notwithstanding the provisions of
Article 22, permission for any such representative to board the Cable
Ship is subject to the acceptance by that representative and the
Maintenance Authority of the Ship Operator's waiver-of-liability
requirements as specified in the relevant Ship Schedule.
10.2 A Maintenance Authority which has elected to undertake the
responsibility for planning and directing any Operation shall designate
in writing, to the relevant Ship Operator, either its Authorised
Shipboard Representative or its Authorised Shore Representative.
10.3 The function of the Authorised Shipboard Representative or the
Authorised Shore Representative, as applicable, designated under
Article 10.2 shall be to communicate to the Ship Operator in writing,
or by confirmatory radio message if reasonably required, the
requirements of the Maintenance Authority in relation to the Operation;
these requirements shall relate only to the particular Operation on
which the Cable Ship is then engaged.
10.4 The Authorised Shipboard Representative or the Authorised Shore
Representative, as applicable, shall have authority to act in all
matters relating to the Operation for and in the name of the relevant
Maintenance Authority as if the acts of the Authorised Shipboard
Representative or the Authorised Shore Representative, as applicable,
were the acts of the Maintenance Authority.
10.5 As applicable, the Authorised Shipboard Representative's or the
Authorised Shore Representative's only function shall be that indicated
in Article 10.3 and neither they nor the Maintenance Authority
represented by them shall have any duty to ensure or procure
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the doing of anything for the benefit of the Shipowner or the Ship
Operator, or to prevent anything which may be to the detriment of the
Shipowner or the Ship Operator.
10.6 The Ship Operator shall provide any representatives of the Maintenance
Authority with the following facilities on board the Cable Ship:
(a) accommodation of a standard not less than that given to
officers on board and preferably with single occupancy;
(b) full victualling and linen supply whilst on board;
(c) access to the normal communication facilities of the Cable
Ship, as required;
(d) full access to any part of the vessel which the Maintenance
Authority's representative may reasonably deem it necessary
for the purpose of representing the Maintenance Authority;
(e) access to suitable office accommodation and services;
(f) access to the Ship Operator's nonconfidential operational
meetings and/or briefings.
ARTICLE 11 MAINTENANCE FACILITIES ON BOARD CABLE SHIPS
11.1 In order to be capable of fulfilling its obligations under this
Agreement, each Ship Operator shall ensure that its Cable Ship is
equipped with submarine telecommunications cable maintenance equipment
and fully-qualified personnel such that the Cable Ship is able to carry
out Repairs and Maintenance and Improvement on all Standard Scheduled
Cables. Unless the Management Committee otherwise agrees, the Standard
Practices which are listed in Schedule E shall be provided as a
minimum.
11.2 For Specific Scheduled Cables, it shall be the responsibility of the
relevant Maintenance Authorities to provide to the Ship Operators, in a
timely manner, any specialised equipment, expertise, training or
qualification instructions which are not included in Standard Practices
and which are necessary for the Repair or Maintenance and Improvement
of such Specific Scheduled Cables. Except as is provided for in Article
2.7, all costs arising from the provision of such specialised
equipment, expertise, training or qualification instructions to the
Ship Operators shall be borne by the relevant Maintenance Authority and
shall not be charged under this Agreement.
11.3 After receiving such specialised equipment, expertise, training or
qualification instructions from a Maintenance Authority pursuant to
Article 11.2, the Ship Operators shall review the detail of what has
been provided and within 2 (two) weeks confirm to the relevant
Maintenance Authority that the Cable Ships are equipped and their
personnel are
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qualified as necessary and capable to carry out Repairs or Maintenance
and Improvement on the relevant Specific Scheduled Cable.
11.4 The Ship Operators shall exercise due diligence in the safekeeping on
board the Cable Ships of any specialised equipment or documentation
provided by the Maintenance Authorities pursuant to Article 11.2.
11.5 The relevant Maintenance Authority shall be responsible for ensuring
that the Ship Operators are provided, in a timely manner, with the
documentation listed in Paragraph 10.1 of Schedule E. On an annual
basis, the Ship Operators shall check and ensure that they have been
provided with such documentation for all Scheduled Cables and, as
necessary, request the relevant Maintenance Authority, in writing, to
provide such documentation.
11.6 The relevant Maintenance Authority shall be responsible for the timely
provision of Spare Submersible Plant for each of the Scheduled Cables
for which it is responsible and for determining its required allocation
between shore depots and Cable Ships.
11.7 Normally, each Cable Ship shall store on board only sufficient Spare
Submersible Plant to meet the operational requirements of the relevant
Ship Operator. However, each Ship Operator may make available to the
Maintenance Authorities additional space on board its Cable Ship for
the storage of Spare Submersible Plant and specialised equipment for
use in connection with work on the Scheduled Cables in the Zone to
which that Cable Ship is assigned. Such storage space for Spare
Submersible Plant shall be that of the normal submersible plant storage
capacity of the Cable Ship, allocated by the Ship Operator:
(a) as agreed by the Eastern Zone Parties for a Cable Ship which
is assigned to the Eastern Zone; or
(b) as agreed by the Western Zone Parties for a Cable Ship which
is assigned to the Western Zone;
and in reaching agreement on such allocation the Western Zone Parties and the
Eastern Zone Parties shall take into account the proportionate number of
Accounting Units allotted to each Scheduled Cable as shown in Schedules B1 or B2
respectively.
ARTICLE 12 USE OF SPARE SUBMERSIBLE PLANT
12.1 If, in the case of a particular Repair, delay in carrying out that
Repair can be avoided or significantly reduced by the use by a Ship
Operator of Spare Submersible Plant belonging to a Maintenance
Authority which is not responsible for the Scheduled Cable requiring
Repair, such Spare Submersible Plant may be used to carry out the
Repair provided that:
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(a) the Maintenance Authority which is responsible for such Spare
Submersible Plant agrees in writing and confirmation of such
agreement has been communicated in writing to the relevant
Ship Operator, and
(b) such Spare Submersible Plant is considered by the Maintenance
Authority for the Scheduled Cable requiring Repair to be
technically-compatible with the submersible plant of the
Scheduled Cable requiring Repair.
12.2 Pursuant to Article 12.1, the Maintenance Authority having
responsibility for the Scheduled Cable under Repair and which has made
use of Spare Submersible Plant proper to another Scheduled Cable shall,
at the discretion of the Maintenance Authority responsible for the
Scheduled Cable to which such Spare Submersible Plant was proper,
either:
(a) replace such Spare Submersible Plant with similar, technically
compatible plant, as soon as practicable; or
(b) re-imburse the then-current cost of such Spare Submersible
Plant to the Maintenance Authority responsible for the
Scheduled Cable to which such Spare Submersible Plant was
proper; or
(c) employ such other method of replacement or re-imbursement as
may be agreed between the Maintenance Authorities responsible
for the Scheduled Cables concerned.
ARTICLE 13 PREPARATION AND REVISION OF SCHEDULES BI AND B2
13.1 The Management Committee shall, with that Maintenance Authority's
consent, appoint one of the Maintenance Authorities to be the Schedule
B Party whose function shall be to prepare, revise and distribute
Schedules B1 and B2. This appointment shall be notified to the Parties
in writing by the chairman of the Management Committee.
13.2 The Accounting Units for each Scheduled Cable shall be derived and
revised by the Schedule B Party in accordance with the provisions of
Schedule B. After the Accounting Units have been revised, the Schedule
B Party shall, in accordance with Schedule B, prepare and send to each
Party and the Central Billing Party the revised Schedules B1 and B2.
13.3 Any Maintenance Authority which has responsibility for:
(a) a new cable system constructed within the Area which is to be
introduced into this Agreement as a Scheduled Cable; or
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(b) a Scheduled Cable that will be introducing newly-equipped
spare capacity into service; or
(c) a Scheduled Cable that will be expanding or reducing its
Bearer Capacity; or
(d) a Scheduled Cable that will incur an expansion or reduction in
Notional Capacity; or
(e) a Scheduled Cable which is to be taken out of service;
shall promptly notify the chairman of the Management Committee who shall, in
turn. notify the Parties and the Schedule B Party of the relevant facts and
Schedules B1 and B2 shall be amended in accordance with Article 13.2.
13.4 A Maintenance Authority may only withdraw a Scheduled Cable from this
Agreement if such Scheduled Cable is permanently removed from
operational service.
ARTICLE 14 ACTION WHEN ALL CABLE SHIPS ARE UNAVAILABLE
14.1 If all Cable Ships are unavailable to undertake a Repair when requested
by a Maintenance Authority, the Maintenance Authority which requested
such Repair may, subject to the approval of the Management Committee,
charter, at a reasonable price agreed by the Management Committee, a
cable ship not subject to this Agreement and, in that event, may apply
to the Management Committee for re-imbursement of the costs of such
charter, pursuant to Article 14.2.
14.2 The cost of making re-imbursement pursuant to Article 14.1 shall be
borne by the Western Zone Parties, if such Repair is required within
the Western Zone, in proportion to the Accounting Units allocated to
them in Schedule B1, or borne by the Eastern Zone Parties, if such
Repair is required within the Eastern Zone, in proportion to the
Accounting Units allocated to them in Schedule B2. The reimbursible
amount shall not exceed the difference, as determined by the Management
Committee, between:
(a) the total costs paid for such charter, and
(b) the estimated Running Costs which would have been chargeable
to the relevant maintenance Authority had the Cable Ship whose
Base Port is closest to the site of such Repair actually made
the Repair;
except that no re-imbursement shall be payable if the amount described in
Article 14.2 (a) above does not exceed the amount described in Article 14.2 (b).
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ARTICLE 15 CABLE SHIP COSTS
15.1 Cable Ship costs consist of:
(a) Standing Charges;
(b) the cost of Fuel Used In Port While On Standby; and
(c) Running Costs.
15.2 The Standing Charges for the period of this Agreement for each Cable
Ship are fixed and are set out in Schedule F.
15.3 The cost of Fuel Used In Port While on Standby, if any, shall be
charged on a cost-incurred basis.
15.4 Running Costs shall be charged on a cost-incurred basis for each
Operation.
15.5 Subject to Articles 2.7 and 9.6, should there arise at any time a need
to modify or improve a Cable Ship or its equipment (including jointing
and associated equipment) or its ▇▇▇▇▇▇▇ arrangements or the training
of its personnel in order to satisfy an amended or new requirement of
the Maintenance Authorities, the Ship Operator concerned shall prepare
a suitable proposal together with any proposed amendment to the
relevant Standing Charges which shall be the subject of Management
Committee consideration and approval prior to the commencement of any
such modification or improvement.
ARTICLE 16 ALLOCATION OF STANDING CHARGES
16.1 With the exception of the CS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ which shall be subject to
the provisions of Article 16.2, each Cable Ship's Standing Charges
(adjusted as appropriate pursuant to Articles 5.2, 16.5, 18 and 19)
shall be allocated to the Zone to which such Cable Ship is assigned,
and shall be borne by the Western Zone Parties or the Eastern Zone
Parties in proportion to the Accounting Units allocated to them in
Schedule B1 or B2 as appropriate. If the use of an Alternative Cable
Ship is approved by the Management Committee, the Standing Charges of
such Alternative Cable Ship shall be allocated to the Zone to which
such Alternative Cable Ship is assigned, and shall be borne by the
Western Zone Parties or the Eastern Zone Parties in proportion to the
Accounting Units allocated to them in Schedule B1 or B2 as appropriate.
16.2 A percentage of the Standing Charges of the CS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
(adjusted as appropriate pursuant to Articles 5.2, 16.5, 18 and 19)
shall be allocated to the Western Zone and shall be borne by the
Western Zone Parties in proportion to the Accounting Units allocated to
them in Schedule B1. The remaining percentage of the Standing Charges
of the CS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (adjusted as appropriate pursuant to Articles
5.2, 16.5, 18 and 19) shall be
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allocated to the Eastern Zone and shall be borne by the Eastern Zone
Parties in proportion to the Accounting Units allocated to them in
Schedule B2. The actual percentage figures to be used for the
allocation of the Standing Charges of the CS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ between the
Western Zone and the Eastern Zone shall be as indicated in Schedules B1
and B2.
16.3 Standing Charges for Passage Time shall be divided equally between the
Zones when the assignment of a Cable Ship requires it to move from one
Zone to the other Zone, either for Standby or an Operation, and shall
be borne by the Western Zone Parties and the Eastern Zone Parties in
proportion to the Accounting Units allocated to them in Schedule B1 or
B2 as appropriate.
16.4 Except as provided for in Article 16.5, for the purpose of calculating
the amount of Standing Charges applicable to any particular period of
time, the Standing Charges shall be divided by 365 (three hundred and
sixty five), or 366 (three hundred and sixty six) in the case of a leap
year, to give an appropriate daily rate.
16.5 Notwithstanding the provisions of Article 16.4, for the purpose of
calculating the amount of the credit arising from any period of Outside
Work in accordance with Articles 5.2.7 and 5.2.8, the relevant Standing
Charges shall be divided by 335 (three hundred and thirty five), or 336
(three hundred and thirty six) in the case of a leap year, to give an
appropriate daily rate.
16.6 Any reduction in Standing Charges credited under this Agreement
pursuant to Articles 5.2, 16.5, 18 and 19 shall be shared among the
Maintenance Authorities having Scheduled Cables in the Zone to which
such Cable Ship having caused the accrual of such Standing Charges
reduction is assigned and in proportion to the Accounting Units
allocated to such Maintenance Authorities in Schedule B1 or B2 as
appropriate. For the purpose of this Article 16.6, the Schedules B1 or
B2 to be used for sharing such credits among the Maintenance
Authorities shall be the Schedules B1 or B2 in force at the time of the
event which caused such reduction in Standing Charges.
16.7 The cost of Fuel Used In Port While On Standby, if any, for a Cable
Ship shall be allocated among the Maintenance Authorities on the same
basis as the relevant Standing Charges for that Cable Ship.
ARTICLE 17 ALLOCATION OF RUNNING COSTS
17.1 Subject to Articles 5 and 19, Running Costs shall be allocated in
accordance with the provisions of this Article 17. If the use of an
Alternative Cable Ship is approved by the Management Committee, the
Running Costs of such Alternative Cable Ship shall also be allocated in
accordance with the provisions of this Article 17.
17.1.1 Unless otherwise agreed by the relevant Maintenance Authorities,
where a Cable Ship undertakes a series of Operations on more than one
Scheduled Cable without
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returning to its Assigned Port, the Running Costs for Passage Time
shall be allocated among the several Operations concerned according to
the procedure set out below.
17.1.1.1 For the purpose of allocating Running Costs pursuant
to this Article 17.1.1, the Passage Time of the Cable Ship
from its Assigned Port to the site of the first Operation, the
Passage Time between the end of each Operation and the start
of the next, and the Passage Time from the end of the last in
the series of Operations to the arrival of the Cable Ship at
its Assigned Port is aggregated to arrive at the total Passage
Time.
17.1.1.2 For the purposes of this Article 17.1.1, references
to an Operation means all Operations on the same Scheduled
Cable, including multiple Repairs, and an Operation is
considered to end when the Cable Ship has cleared the site of
the Operation of any marker buoys and other equipment and
departs from the site of the Operation.
17.1.1.3 The allocation of Passage Time to each Operation is
that proportion of the total Passage Time (calculated pursuant
to Article 17.1.1.1) which is equal to the Operational
Distance, as calculated by the relevant Ship Operator, of each
Operation divided by the sum of all Operational Distances
involved in such series of Operations.
17.1.1.4 Weather delays which occur while the Cable Ship is on
passage shall be included in Passage Time.
17.1.1.5 Running Costs for weather delays which occur during
the course of an Operation shall be charged to such Operation.
17.1.2 Running Costs for Passage Time for Cable Ship movements within a
Zone in compliance with the Ships' Program, shall be allocated to the
Zone in which the movement takes place and shall be borne by the
Maintenance Authorities having Scheduled Cables in that Zone in
proportion to the Accounting Units allocated to them in Schedule B1 or
B2 as appropriate.
17.1.3 Running Costs for Passage Time between Zones in compliance with
the Ships' Program, shall be divided equally between the Zones and
shall be borne by the Maintenance Authorities in proportion to the
Accounting Units allocated to them in Schedule B1 or B2 as appropriate.
17.1.4 Running Costs for Cable Ship movements between Zones for the
purpose of an Operation, as approved by the Management Committee, shall
be charged to the Maintenance Authority requesting such Operation.
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17.1.5 Running Costs for a cable working exercise as provided for in
Article 5.2.3 shall be borne by the Maintenance Authorities having
Scheduled Cables in the Zone to which such Cable Ship is assigned, in
proportion to the Accounting Units allocated to them in Schedule B1 or
B2 as appropriate. Notwithstanding the other provisions of this Article
17.1.5, Running Costs for cable working exercises by C S ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
shall be apportioned between Zones using the percentages referred to in
Article 16.2.
17.1.6 If, pursuant to Article 8.3, a Maintenance Authority is given
priority as a result of competing claims for the services of a Cable
Ship and, as a result of such granting of priority, the Cable Ship is
required to interrupt and divert from a Repair in progress, the Running
Costs of the Cable Ship shall be borne as follows.
17.1.6.1 Starting from the time of such diversion, Running
Costs for the diverted Cable Ship shall be charged to the
Scheduled Cable which has been granted such Repair priority.
Such Running Costs shall be those applicable to any or all of
the following, as required:
(a) Passage Time for a return to the Assigned Port;
(b) any applicable loading and unloading time or mobilisation and
de-mobilisation time;
(c) Passage Time to the site of the Repair on the Scheduled Cable
which has been granted such Repair priority;
(d) the Repair on the Scheduled Cable which has been granted such
Repair priority;
(e) Passage Time to the site of the Repair on the Scheduled Cable
which was not granted such Repair priority, either via the
Assigned Port or directly;
(f) in the event that the Passage Time in 17.1.6.1 (e) above is
incurred via the Assigned Port, any applicable loading and
unloading time or mobilisation and de-mobilisation time
necessary for the Repair to the Scheduled Cable which was not
granted such Repair priority.
17.1.7 If the Cable Ship diverted pursuant to Article 8.3, is thereupon
required to undertake another Repair before returning to the Assigned
Port or to the site of the Repair to the Scheduled Cable which was not
granted such Repair priority, Running Costs for Passage Time shall be
apportioned between the Operations as shall be agreed by the
Maintenance Authorities concerned. If the Maintenance Authorities
concerned cannot agree, the Management Committee shall determine the
apportionment. Whilst awaiting such Management Committee decision, the
relevant Ship Operator may, for the purpose of interim billing, charge
such Running Costs in equal shares to the Maintenance
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Authorities whose Scheduled Cables were involved in such series of
Operations. Such interim billing shall be adjusted upon receipt of the
Management Committee's decision.
17.1.8 If another Cable Ship, other than the one diverted pursuant to
article 8.3, is dispatched to perform the Repair to the Scheduled Cable
which was not granted the Repair priority, the Running Costs for this
Cable Ship from the time of mobilisation until its arrival at the site
of the Repair to the Scheduled Cable which was not granted the Repair
priority shall be charged to the Scheduled Cable which has been granted
such Repair priority.
17.1.9 In addition to the payment of Running Costs pursuant to Articles
17.1.6 to 17.1.8, if, pursuant to Article 8.3, a Maintenance Authority
is given priority as a result of competing claims for the services of a
Cable Ship and, as a result of such granting of priority, the Cable
Ship is required to interrupt and divert from a Repair in progress, the
Maintenance Authority for the Scheduled Cable which has been granted
such Repair priority shall re-imburse the Maintenance Authority for the
Scheduled Cable which was not granted such Repair priority its
reasonable and directly-incurred incremental costs resulting from such
diversion, which costs shall include but not be limited to:
(a) any costs arising directly from the re-arrangement of a
planned Repair, but excluding restoration charges;
(b) the travel expenses of its associated shipboard and shore
representatives.
17.1.10 Notwithstanding any other provision of this Article 17.1, the
method of allocation of any Running Costs generated pursuant to
Articles 4.1.3 to 4.1.6 may be proposed by any Party and shall be
decided upon by either:
(a) the Maintenance Authorities having Scheduled Cables in the
affected Zone; or
(b) the Management Committee;
as appropriate pursuant to Articles 3.4.4 to 3.4.7 inclusive.
ARTICLE 18 CABLE SHIP COSTS IN CASE OF DAMAGE
18.1 Subject to Articles 6.5 and 18.2, if a Cable Ship is damaged to such an
extent that it requires repairs, the Maintenance Authorities shall bear
(as provided for in Article 16) its Standing Charges up to and not
exceeding 120 (one hundred and twenty) days from the date of such
damage.
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18.2 Notwithstanding the provisions of Article 18.1, if:
(a) at the time such damage to the Cable Ship occurred the Cable
Ship was engaged on Outside Work; and/or
(b) the damage to the Cable Ship was caused as a result of the
negligence or Wilful Misconduct of the relevant Ship Operator;
all Standing Charges, from the time such damage occurred until such time as the
damage has been repaired and the Cable Ship is again Available, shall be borne
by the relevant Ship Operator and shall not be charged under this Agreement.
18.3 If the necessity of repairs to a Cable Ship results from the deliberate
act or negligence of a third party, the relevant Ship Operator shall
diligently pursue all claims against such third party for the recovery
of Standing Charges which have been borne by the Maintenance
Authorities pursuant to Article 18.1, but without prejudice to such
Ship Operator's right to settle or compromise on terms which it
considers reasonable after first obtaining the approval of the
Management Committee which shall not be unreasonably withheld or
delayed. To the extent that any sums recovered by way of damages or in
settlement of claims include any Standing Charges which have been paid
by the Maintenance Authorities during the repair period, that amount
shall be credited to the Maintenance Authorities by the Ship Operator
and shall be shared among the Maintenance Authorities in proportion to
the Accounting Units allocated to them in Schedules B1 or B2 as
appropriate. For the purpose of this Article 18.3, the Schedules B1 or
B2 to be used for sharing such credits shall be the Schedules B1 or B2
in force at the time of the incident which necessitated such repairs to
the Cable Ship.
ARTICLE 19 CABLE SHIP COSTS DURING PERIODS OF UNAVAILABILITY
19.1 Standing Charges and Running Costs shall be borne by the relevant Ship
Operator and shall not be charged under this Agreement for periods
during which a Cable Ship is unavailable for work on Scheduled Cables
in any of the following circumstances:
19.1.1 from the time that it becomes a Total Loss or a Constructive
Total Loss; or
19.1.2 during the period from the 121st (one hundred and twenty first)
day after damage to a Cable Ship has occurred, as specified in Article
18.1, until repairs have been completed and the Cable Ship is again
Available; or
19.1.3 during any period while the Cable Ship is performing Outside
Work pursuant to Article 5.2.7, including any Passage Time associated
with such Outside Work.
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19.2 Provided that a Cable Ship is not engaged on Outside Work at the time
that the relevant event occurs, Standing Charges and Running Costs
shall continue to be borne by the relevant Maintenance Authorities in
any of the following events:
(a) while a Cable Ship is undergoing emergency ship or engine
repairs, subject to the limitations of Article 18.1;
(b) while a Cable Ship is unavailable for work on Scheduled Cables
owing to circumstances outside the control of the Ship
Operator or by reason of force majeure, which reasons include,
but are not restricted to. acts of God or of the public enemy,
acts of governments, insurrections, fires, floods, epidemics,
quarantine restrictions, freight embargoes, strikes or
unusually severe weather.
ARTICLE 20 RESPONSIBILITIES FOR THE SHIP SCHEDULES AND REPORTS
20.1 The terms and conditions for the operation of each Cable Ship within
this Agreement are set out in Schedules C1 through C6 inclusive.
ESTIMATES OF RUNNING COSTS AND FUEL USED IN PORT WHILE ON STANDBY
20.2 Not later than two months before the start of each Agreement Year, each
Ship Operator shall provide the Management Committee with an estimate
of Running Costs for its Cable Ship, in accordance with the format set
out in Schedule G, and an estimate of the cost of Fuel Used In Port
While On Standby.
SHIPS' PROGRAM
20.3 The Management Committee shall appoint, with that Ship Operator's
consent, a Ship Operator to be the Schedule H Party which shall be
responsible for the preparation, revision and distribution of the
Ships' Program in the format given in Schedule H. Not later than two
months before the beginning of each Agreement Year, the Ship Operators
shall each provide the Schedule H Party with their ship's program for
the succeeding Agreement Year. The Schedule H Party shall then
consolidate these ship's programs into the draft Ships' Program and
submit it to the Management Committee for its approval in accordance
with Article 4.3.
OPERATIONAL REPORTS
20.4 When a Ship Operator is notified to commence an Operation or when a
Cable Ship changes operational status, the Ship Operator shall notify
the Management Committee by facsimile, as specified below:
(a) Upon receipt by a Ship Operator of written notification that
its Cable Ship is required to carry out a Repair in accordance
with Article 8.1, the Ship Operator
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shall, within 24 (twenty four) hours, transmit to the
Management Committee a "Notification of Commencement of a
Cable Ship Operation" in accordance with Schedule 11.
(b) For the duration of the Repair, the relevant Ship Operator
shall provide the relevant Maintenance Authorities and, if
different, the terminal parties of the Scheduled Cable
undergoing Repair, with daily progress reports. Such daily
reports shall include:
(i) a log of the day's events;
(ii) an indication of the estimated number of hours
remaining until completion of the final splice;
(iii) an indication of the times when the Cable Ship is
likely to require co-operation from the terminal parties of
the Scheduled Cable undergoing Repair;
(iv) information on the nature of the fault, any possible
delays and any equipment and procedural problems encountered;
and the format of such daily reports shall follow as far as possible the steps
given in the pro forma "Repair Synopsis" attached as Schedule M.
(c) Upon completion of such Repair, the Ship Operator shall,
within 24 (twenty four) hours, transmit to the Management
Committee a "Notification of Completion of a Cable Ship
Operation" in accordance with Schedule 12.
(d) Upon a Cable Ship's change in operational status eg, Standby,
Repair, Maintenance and Improvement, Refit, Outside Work,
cable working exercise, etc, the Ship Operator shall transmit
to the Management Committee a notification of the change in
status in accordance with Schedules 11 and 12.
(e) Within 45 (forty five) days after the completion of a Repair,
the relevant Ship Operator shall provide to the relevant
Maintenance Authority a detailed repair report in the English
language.
(f) The Management Committee shall appoint, with that Maintenance
Authority's consent, a Maintenance Authority to be the
Schedule L Party which shall be responsible for the
preparation, revision and distribution of the annual "ACMA
Fault Report".
(g) Not later than 2 (two) months after the end of each Agreement
Year, each Maintenance Authority shall inform the Schedule L
Party of the number of faults on their respective Scheduled
Cables repaired during such Agreement Year. This
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information shall be given by facsimile in accordance with the
format given in Schedule L. Based upon the information
received, the Schedule L Party shall send the "ACMA Fault
Report" to each Party before the date of the next annual
Management Committee meeting.
(h) Within 1 (one) week of a Repair being completed, the relevant
Ship Operator shall provide to the relevant Maintenance
Authority the "Repair Synopsis" in accordance with the format
given in Schedule M. It shall then be the responsibility of
the relevant Maintenance Authority to communicate a copy of
the agreed "Repair Synopsis" to the Schedule L Party.
(i) Cable Ship reporting arrangements for Maintenance and
Improvement or other work of an interruptible nature shall be
as agreed between the relevant Ship Operator and the relevant
Maintenance Authority responsible for such work.
ESTIMATES OF CABLE SHIP RUNNING COSTS FOR OPERATIONS
20.5 In the case of a Ship Operator undertaking an Operation, and at the
request of the Maintenance Authority concerned, the Ship Operator shall
advise the Maintenance Authority, by facsimile, of the estimated
Running Costs of its Cable Ship for such Operation in accordance with
the format given in Schedule J. Any such request by the relevant
Maintenance Authority may be made prior to, during or following an
Operation.
ACTIVITY AND UTILISATION REPORTS AND SUMMARIES
20.6 The Management Committee shall appoint, with that Ship Operator's
consent, a Ship Operator to be the Schedule K Party, which shall be
responsible for the collection and dissemination of information on
Cable Ship and Alternative Cable Ship activities and utilisation. The
Schedule K Party shall advise the Maintenance Authorities as follows:
(a) by the second working day of each week, the Schedule K Party
shall provide the "Weekly Cable Ship Activity Report" in
accordance with the format given in Schedule K1;
(b) not later than 2 (two) months after the end of each quarter,
the Schedule K Party shall provide the "Quarterly Cable Ship
Activity Report" in accordance with the formats given in
Schedules K2 and K5;
(c) not later than 2 (two) months after the end of each quarter,
the Schedule K Party shall provide the "Quarterly Cable Ship
Utilization Report" in accordance with the format given in
Schedules K3 and K5;
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(d) not later than 2 (two) months after the end of each Agreement
Year, the Schedule K Party shall provide the Management
Committee with an "Annual Cable Ship Allocation Report" in
accordance with the format given in Schedule K4.
ARTICLE 21 BILLING PROCEDURES
21.1 Bills showing the amounts due to the Ship Operators from the
Maintenance Authorities for their respective shares of all Cable Ship
costs for each quarter shall be rendered to them by the Central Billing
Party on the 15th (fifteenth) working day of the month before the start
of each quarter. Such bills shall be based on information received by
the Central Billing Party under Article 21.2 and shall include but not
be limited to:
(a) Standing Charges in respect of the quarter;
(b) any reduction of Standing Charges in respect of Outside Work
forecast for the quarter;
(c) adjustments in respect of actual Outside Work in previous
quarters;
(d) Running Costs, as incurred and advised to the Central Billing
Party quarterly;
(e) the cost of Fuel Used In Port While On Standby, as incurred
and advised to the Central Billing Party quarterly;
(f) interest, pursuant to Article 21.5, on bills not paid when
due;
(g) a statement of the total Available Ship Days having been
charged under this Agreement, both on a quarterly basis and
cumulatively for the Agreement Year to date;
(h) Central Billing Party charges in respect of the quarter.
21.2 On or before the first working day of the last month preceding each
quarter, each Ship Operator shall advise the Central Billing Party of
the details of Standing Charges (including retrospective adjustments),
the cost of Fuel Used In Port While On Standby and Running Costs, to be
included in the bills next due to be rendered to the Maintenance
Authorities. Such details shall be advised in the currency of the Ship
Operator.
21.3 For billing purposes, all such costs notified to the Central Billing
Party under Article 21.2 shall be converted into the currency of the
Central Billing Party at the exchange rates pertaining to forward
foreign exchange contracts which the Central Billing Party will enter
into for the purchase of the amounts due to each Ship Operator in its
own currency on the first working day of the third month of the
quarter. Such exchange rate shall be shown on the associated ▇▇▇▇ along
with the date relevant to that exchange rate.
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21.4 Bills shall be rendered in the currency of the Central Billing Party
and shall be payable in that currency.
21.5 Bills shall be payable by the Maintenance Authorities to the Central
Billing Party by the last working day of the second month of the
quarter to which they relate, or if the issue of a ▇▇▇▇ is delayed, 70
(seventy) days from the date of issue, whichever is the later. Bills
not paid by the due date will incur a charge for simple interest at a
rate of 125 (one hundred and twenty five) per cent of the quarterly
LIBOR applicable on the date that the payment was overdue.
21.6 On the first working day of the third month of each quarter, the
Central Billing Party shall remit to or settle with each Ship Operator,
in the Ship Operator's own currency, the amounts notified by it under
Article 21.2.
BILLS UNDER DISPUTE
21.7 Should any ▇▇▇▇ or part thereof be under dispute as to its correctness,
then extended payment interest shall not accrue on the amount of the
▇▇▇▇ pursuant to Article 21.5 provided always that:
(a) before the due date for payment the Central Billing Party
shall be advised by telex, facsimile or like means of
communication of the amount in dispute and the nature of that
dispute; and
(b) in this respect the Central Billing Party shall, if requested
by the billed Party within 30 (thirty) days of receipt of the
▇▇▇▇ in dispute, issue a replacement ▇▇▇▇ omitting the amount
in dispute and such replacement ▇▇▇▇ shall become due for
payment within 21 (twenty-one) days from the date on which
such replacement ▇▇▇▇ was raised, or on the original due date
for payment, whichever is the later; and
(c) the amount in dispute shall be investigated by the relevant
Parties and any necessary ▇▇▇▇ with respect to such amount in
dispute shall be issued and paid in accordance with Article
21.5; and
(d) notwithstanding the foregoing, in the event that upon
investigation the amount in dispute or part thereof is found
to be correct, the billed Party shall pay interest in
accordance with Article 21.5 on the unpaid part which is found
to be correct from the day after the due date for payment for
the original ▇▇▇▇ in dispute until and including the day such
payment is received by the Central Billing Party.
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BILLS UNPAID FOR 180 DAYS
21.8 The Central Billing Party shall at all times make all reasonable effort
to ensure that all bills rendered to Maintenance Authorities are paid
as due. However, if a ▇▇▇▇, not under dispute pursuant to Article 21.7,
for a Scheduled Cable remains unpaid for 180 days after the due date,
the other Maintenance Authorities having Scheduled Cables in the same
Zone as the defaulting Maintenance Authority shall reimburse the
Central Billing Party their proportionate shares of the unpaid ▇▇▇▇,
including their proportionate shares of the interest incurred by the
Central Billing Party. The amounts paid by such Maintenance Authorities
shall be in proportion to their Accounting Units, as allocated to them
in Schedule B1 or Schedule B2, as appropriate within the applicable
Zone.
21.9 Nothing contained in this Article shall release a defaulting
Maintenance Authority from its obligations under this Agreement and a
defaulting Maintenance Authority shall continue to be billed its share
of all Cable Ship costs in proportion to the Accounting Units allocated
to it in Schedule B1 or B2, as appropriate, including interest for late
payment. However, if the defaulting Maintenance Authority fails to pay
any ▇▇▇▇ within 180 days of its due date, the Ship Operators shall,
unless the Management Committee agrees otherwise, be instructed by the
chairman of the Management Committee to carry out no further Operations
on any of the Scheduled Cables for which such defaulting Maintenance
Authority has responsibility until such time as full payment of
outstanding bills, including interest for late payment, is received by
the Central Billing Party from such defaulting Maintenance Authority or
its non-defaulting joint Maintenance Authority pursuant to Article
2.10. The chairman of the Management Committee shall give prompt notice
to such defaulting Maintenance Authority that he has so instructed the
Ship Operators. Furthermore, even when all outstanding balances,
including applicable interest for late payment, have been paid in full
by the defaulting Maintenance Authority or its non-defaulting joint
Maintenance Authority, the chairman of the Management Committee shall
advise such defaulting Maintenance Authority that any future Operation
on the Scheduled Cables for which such defaulting Maintenance Authority
has responsibility shall only be carried out following the prior
payment of a security deposit to the Central Billing Party. Such
security deposit shall be equal to the amount of the expected Running
Costs for such intended Operation, as estimated by the relevant Ship
Operator, plus any previous charges including interest for late payment
not paid by such defaulting Maintenance Authority.
21.10 In the event that a Maintenance Authority for a Scheduled Cable has
failed to pay a ▇▇▇▇ within 180 days of the due date and that Scheduled
Cable has two or more joint Maintenance Authorities as shown in
Schedule B1 or B2 as appropriate, the Central Billing Party shall
notify such other joint Maintenance Authority for that Scheduled Cable
of such default for non-payment. Notwithstanding Articles 21.8 and
21.9, such non-defaulting joint Maintenance Authority shall have the
option to pay any unpaid ▇▇▇▇ of its defaulting joint Maintenance
Authority including interest for late payment. The
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relevant provisions of Article 21.9 shall, however, continue to apply
to all Scheduled Cables for which such defaulting Maintenance Authority
has responsibility.
21.11 Upon receipt by the Central Billing Party from the defaulting
Maintenance Authority or from its joint Maintenance Authority (pursuant
to Article 21.9 or 21.10) of any amount previously reimbursed by the
other Maintenance Authorities having Scheduled Cables in the Zone in
accordance with Article 21.8, any such amounts, including any interest
for late payment, shall be distributed to such other Maintenance
Authorities in the Zone in the same proportions as those Maintenance
Authorities reimbursed the Central Billing Party under Article 21.8.
CENTRAL BILLING PARTY APPOINTMENT AND CHARGES
21.12 The Management Committee shall, with that Maintenance Authority's
consent, appoint a Maintenance Authority to act as the Central Billing
Party.
21.13 The Central Billing Party may impose a charge associated with the
performance of the Central Billing Party function. The charge made
under this Article 21.13 shall be approved by the Management Committee,
shall be included in the quarterly bills, shall be allocated equally
between the Zones and shall be borne by the Maintenance Authorities in
proportion to the Accounting Units allocated to them in Schedule B1 or
B2 as appropriate.
AUDITING AND KEEPING OF RECORDS
21.14 The Ship Operators shall, as appropriate, keep such records, vouchers,
accounts or reproductions thereof in whatever form of all costs
incurred in connection with the Running Costs and Fuel Used In Port
While On Standby of the relevant Cable Ship as well as the storage
costs and transfer costs of the relevant depot to support their billing
of such costs to and among the Maintenance Authorities, until a date
not less than 3 (three) years from the date of termination of this
Agreement and shall make such records, vouchers and accounts available
at all reasonable times for inspection by the relevant Maintenance
Authority, at that Maintenance Authority's cost if any.
ARTICLE 22 LIABILITY AND INDEMNITY
LIABILITY AND INDEMNITY OF SHIP OPERATORS
22.1 Each Ship Operator shall be liable for all direct damages arising in
the discharge of its obligations under this Agreement to the extent
that such damages have resulted from the negligence or Wilful
Misconduct of the Ship Operator, its agents or employees. The Ship
Operator shall indemnify and hold harmless the Maintenance Authority
concerned against all claims, actions, demands, or judgements for such
direct damages.
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22.2 Each Ship Operator shall be liable for injury or damages sustained by
its employees or agents in the course of their employment or agency to
the extent that such injury or damages are not caused by the negligence
or Wilful Misconduct of a Maintenance Authority and said Ship Operator
will indemnify and hold harmless the Maintenance Authorities against
all claims, actions, demands, or judgement for such injury or damages
by employees or agents of the Ship Operator to the extent that they are
not caused by the negligence or Wilful Misconduct of a Maintenance
Authority.
LIABILITY AND INDEMNITY OF MAINTENANCE AUTHORITIES
22.3 Each Maintenance Authority shall be liable for all direct damages
arising in the discharge of its obligations under this Agreement to the
extent that such damages have resulted from the negligence or Wilful
Misconduct of the Maintenance Authority, its agents or employees. The
Maintenance Authorities shall indemnify and hold harmless the Ship
Operator concerned against all claims, actions, demands or judgements
for such direct damages.
22.4 Each Maintenance Authority shall be liable for injury or damages
sustained by its employees or agents in the course of their employment
or agency to the extent that such injury or damages are not caused by
the negligence or Wilful Misconduct of a Ship Operator and said
Maintenance Authority will indemnify and hold harmless the Ship
Operators against all claims, actions, demands, or judgement for such
injury or damages by employees or agents of the Maintenance Authority
to the extent that they are not caused by the negligence or Wilful
Misconduct of a Ship Operator.
22.5 Except as stated in Articles 22.1 to 22.4, no Party shall be liable for
any other damages suffered by any other Party nor shall any Party be
required to indemnify or hold harmless any other Party against claims
made by any person or entity against any of them for damages arising
from the acts or omissions of any Party or its agents or employees in
the discharge of its obligations under this Agreement.
LIABILITY AND INDEMNITY OF THE APPOINTED PARTIES
22.6 Each Appointed Party shall each exercise due care, diligence and
promptness in the discharge of its duties and the Parties jointly and
severally shall indemnify and hold harmless each of the Appointed
Parties against any claims, actions, demands or judgements arising out
of each Appointed Party's performance, purported performance or
non-performance of its functions under this Agreement, except if such
claims, actions, demands or judgements arise out of the negligence or
Wilful Misconduct of the Appointed Party.
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EFFECT OF INDEMNITIES
22.7 The indemnities and undertakings to hold harmless in this Article 22
are given in full satisfaction of any liability of whatsoever nature
caused or arising out of an incident or series of incidents in any
manner connected with this Agreement and are in substitution for each
and every other right and remedy (whether arising generally at law,
under statute or otherwise) which any of the Parties might or would
otherwise have had against any other Party, in respect of the matters
covered thereby.
CONSEQUENTIAL LOSS
22.8 Notwithstanding the provisions of Articles 22.1 to 22.7, no Party shall
be liable to any other Party in contract, tort (including negligence or
breach of statutory duty) or otherwise for loss (whether direct or
indirect) of profits, production, business or anticipated savings or
for any indirect or consequential loss or damage whatsoever arising in
connection with the operation of this Agreement, howsoever caused.
ARTICLE 23 LIMIT OF LIABILITY
23.1 Notwithstanding the provisions of Articles 22.1 to 22.8, the total
liability of any of the Parties to the other Parties collectively
arising in any manner out of or in connection with this Agreement shall
be limited to the sum of 1 (one) million Pounds Sterling for any one
incident (or series of connected incidents) and 2 (two) million Pounds
Sterling in total for any incident or series of incidents, related or
unrelated, in any period of 12 (twelve) months, provided that the
limitations of liability in this Article 23.1 shall not apply to:
23.1.1 obligations to make payments in respect of Standing Charges or
Running Costs or any other costs and expenses payable under the terms
of this Agreement other than by way of indemnity; and/or
23.1.2 liability for the cost of replacement of lost or damaged Spare
Submersible Plant.
23.2 The Parties undertake that any policies of insurance that they hold in
connection with activities carried out under this Agreement shall
contain waivers of all rights of recovery or subrogation which would
otherwise negate the provisions of Article 23.1.
23.3 The Parties each agree to waive any rights of marine limitation to
which they may be entitled and which might otherwise limit or negate
the terms of this Agreement.
23.4 No party to this Agreement excludes or restricts liability for death or
personal injury resulting from its own negligence.
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ARTICLE 24 WAR RISKS
24.1 Unless the written consent of the Ship Operator is first obtained, a
Cable Ship shall not be ordered into or continue in any place or any
voyage nor be used on any service that will bring the Cable Ship within
a zone which is dangerous as a result of any actual or threatened acts
of war, hostilities, warlike operations, acts of piracy or of hostility
or malicious damage against the Cable Ship or any other vessel or its
cargo by any person, body of state whatsoever, revolution, civil war,
civil commotion or the operation of international law, nor be exposed
in any way to any risks or penalties whatsoever consequent upon the
imposition of sanctions, nor carry any goods that may in any way expose
the Cable Ship to any risks of seizure, capture, penalties or any other
interference of any kind whatsoever by the belligerent or fighting
powers or by any government or ruler.
24.2 Should the Cable Ship approach or be brought or ordered within such
zone, or be exposed in any way to the said risks, the Ship Operator
and/or the Shipowner shall be entitled from time to time to insure its
interests in the Cable Ship against any of the risks likely to be
involved thereby, on such terms as are reasonable and the Maintenance
Authority concerned shall re-imburse the Ship Operator and/or the
Shipowner for the additional premiums.
24.3 The Master shall have liberty to comply with any orders or directions
as to departure, arrival, routes, ports of call, stoppages,
destination. delivery or in any ways whatsoever given by the government
of the nation under whose flag the Cable Ship sails or any other
government or any person or body acting, or purporting to act, with the
authority of such government or by any committee or person having,
under the terms of the war risks insurance on the Cable Ship, the right
to give such orders or directions.
ARTICLE 25 RELATIONSHIP OF PARTIES
25.1 The relationship and common enterprise between and among the Parties
shall not be that of partners and shall be limited to the express
provsions of this Agreement. Nothing contained in this Agreement shall
be deemed to constitute a partnership or societe de fait between and
among the Parties or to merge their assets or their fiscal or other
liabilities or undertakings, nor shall it allow a Party to act as a
mandatory or agent of the other Parties or any of them, except to the
extent specifically permitted hereunder.
ARTICLE 26 ARBITRATION
26.1 All disputes arising in connection with this Agreement which cannot be
settled amicably shall be finally settled under the rules of
conciliation and arbitration of the International Chamber of Commerce
by one or more arbitrators appointed in accordance with said rules. The
results of any such arbitration shall be binding upon the Parties to
this
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Agreement. The language of arbitration shall be English and the
arbitration shall take place in Geneva, Switzerland.
ARTICLE 27 AMENDMENT OF AGREEMENT AND ADMISSION OF NEW PARTIES
27.1 Except as specifically permitted under this Agreement, no provision of
this Agreement may be amended except by the written agreement of all
Parties.
27.2 Other persons or entities which are or become responsible for the
maintenance of submarine telecommunications cables within the Area
shall, upon request, be admitted as Parties.
27.3 Upon such request pursuant to Article 27.2, the signature of the
chairman of the Management Committee on the document witnessing the
admission of the new Party shall have the effect of binding all the
other Parties as if each itself had signed such document and the
chairman of the Management Committee shall then transmit a certified
copy of the document to all the Parties. The document of admission of a
new Party shall be in the format given in Schedule N.
ARTICLE 28 APPROVALS AND CONSENTS
28.1 The performance of this Agreement by any Party is contingent upon the
obtaining and continuance of such approvals, consents, governmental
authorisations, licenses and permits as may be required and each Party
shall make all reasonable effort to obtain by 1 January 1998 and to
have continued in effect such approvals, consents, authorisations,
licenses and permits.
ARTICLE 29 PERIOD OF AGREEMENT
29.1 Notwithstanding any other date, this Agreement shall come into force
pursuant to the terms of Article 2.11, shall have an effective date of
1 January 1998 and shall be effective for a period of three years
terminating on 31 December 2000.
29.2 A Maintenance Authority shall, however, withdraw from this Agreement
prior to the end of this three-year period if the withdrawal of its
Scheduled Cable from this Agreement, pursuant to Article 13.4, results
in such Maintenance Authority having no remaining Maintenance Authority
responsibility for any Scheduled Cables. In this instance, the
effective date of withdrawal of such Maintenance Authority shall be
deemed to be the date at which its last Scheduled Cable was permanently
withdrawn from operational service. A withdrawing Maintenance Authority
shall not be relieved of any of its obligations incurred prior to the
effective date of such withdrawal, including the obligation to pay its
relevant share of all costs, billable under this Agreement, which are
incurred prior to the effective date of such withdrawal.
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ARTICLE 30 ASSIGNMENT AND SUCCESSORS BOUND
30.1 This Agreement, and the rights and obligations hereunder of the Parties
hereto, shall not be assigned in whole or in part by any Party without
the prior written consent of the other Parties which consent shall not
be unreasonably withheld or delayed; except that no consent of any kind
shall be required in the case of an assignment:
(a) to a successor to all or substantially all of the assigning
Party's business; or
(b) to an Affiliate;
and the assigning Party shall promptly give written notice to the other Parties
of any assignment permitted to be made without the other Parties' consent. Any
assignment hereunder shall not be valid unless the assignee/successor agrees in
writing to be bound by all the provisions hereof.
30.2 This Agreement shall be binding upon the Parties and their respective
successors and permitted assigns.
ARTICLE 31 GOVERNING LAW
31.1 The interpretation, validity and performance of this Agreement shall be
governed in all respects by the laws of Switzerland.
ARTICLE 32 WAIVER
32.1 The waiver of any breach of any term or condition of this Agreement
shall not be deemed to be a waiver of any other breach of the same or
any other term or condition of this Agreement. No waiver shall be valid
unless it is in writing and signed on behalf of the Party making the
waiver.
ARTICLE 33 INVALIDITY
33.1 If any provision of this Agreement is found by a irregulatory or
judicial authority having jurisdiction to be void or unenforceable,
such provision shall be deemed to be deleted from this Agreement and
the remaining provisions shall continue in full force and effect.
Notwithstanding the foregoing, the Parties shall thereupon negotiate in
good faith in order to agree upon the terms of a mutually satisfactory
provision to be substituted for the provision found to be void or
unenforceable.
ARTICLE 34 CONFIDENTIALITY
34.1 Subject as is provided in Article 34.2, the Parties undertake that they
will keep secret and confidential and will not disclose and will use
only for the purposes of this Agreement
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any Confidential Information which they may receive or acquire pursuant
to this Agreement.
34.2 Notwithstanding the provisions of Article 34.1 any Party may disclose
such Confidential Information to their Affiliates, and to their or
their Affiliates' contractors and sub-contractors, and to any of their
respective employees, servants or agents who need such Confidential
Information for the purpose of enabling the Party making disclosure to
perform any of their obligations or exercise any of their rights under
this Agreement provided that such aforementioned Affiliate, contractor,
subcontractor, employee, servant or agent shall have undertaken to keep
such Confidential Information confidential and not to disclose it or
use it for any other purpose.
ARTICLE 35 EXECUTION OF AGREEMENT
35.1 This Agreement and any amendment hereof shall be executed in three
counterparts in the English, French and Spanish languages, and each
such counterpart shall be an original, and such counterparts shall
together, as well as separately, constitute one and the same Agreement.
35.2 Certified photocopies of this Agreement and any amendment hereof shall
be distributed to the Parties by the chairman of the Management
Committee.
35.3 If any differences in interpretation should arise between the English,
French and Spanish versions of this Agreement or any amendment hereof,
the English version shall be decisive.
TESTIMONIUM
IN WITNESS, WHEREOF the undersigned, duly authorised, have signed this
Agreement.
FOR AND ON BEHALF OF ADMINISTRACION NACIONAL DE
TELECOMUNICACIONES
/s/ Name of Signatory 15/1/1998
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF ANTELECOM, TELECOMMUNICATION ADMINISTRATION,
NETHERLANDS ANTILLES
_________________________________________________ DATE ___________________
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FOR AND ON BEHALF OF AT&T CORP.
/s/ Name of Signatory 11/12/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF BAHAMAS TELECOMMUNICATIONS CORPORATION
/s/ Name of Signatory 11/12/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF BORD TELECOM EIREANN
/s/ Name of Signatory 12/3/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF BRITISH TELECOMMUNICATIONS plc
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF CABLE AND WIRELESS MARINE LIMITED
/s/ Name of Signatory 11/12/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF CABLE AND WIRELESS plc
/s/ Name of Signatory 11/12/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF COMPANIA ANONIMA NACIONAL TELEFONOS DE VENEZUELA
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF COMPANIA DOMINICANA DE TELEFONOS, C. POR A.
/s/ Name of Signatory 12/10/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF COMPANHIA PORTUGUESA RADIO ▇▇▇▇▇▇▇, ▇.▇.
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
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FOR AND ON BEHALF OF THE C.S. GLOBAL LINK, L.P., BY ITS GENERAL PARTNER
TRANSOCEANIC CABLE SHIP COMPANY, INC.
/s/ Name of Signatory 11/12/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF THE C.S. GLOBAL MARINER, L.P., BY ITS GENERAL PARTNER
TRANSOCEANOC CABLE SHIP COMPANY, INC.
/s/ Name of Signatory 11/12/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF DEUTSCHE TELEKOM AG
/s/ Name of Signatory 11/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF EMPRESA BRASILEIRA DE TELECOMUNICACOES S.A.
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF FLAG LIMITED
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF FRANCE TELECOM
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF FRANCE CABLES ET RADIO
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF GEMINI SUBMARINE CABLE SYSTEM LIMITED
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
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FOR AND ON BEHALF OF MERCURY COMMUNICATIONS LIMITED
/s/ Name of Signatory 11/12/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF NIGERIAN TELECOMMUNICATIONS LTD
________________________________________________ DATE ___________________
FOR AND ON BEHALF OF L'OFFICE NATIONAL DES TELECOMMUNICATIONS DE
COTE D'IVOIRE
/s/ Name of Signatory 13/1/1998
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF THE OFFICE NATIONAL DES POSTES ET TELECOMMUNICATIONS
/s/ Name of Signatory 4/1/1998
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF POST AND TELECOM ICELAND LTD
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF PRIVATE TRANSATLANTIC TELECOMMUNICATIONS SYSTEMS, INC.
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF SOCIETE MAROCAINE DE TELECOMMUNICATIONS PAR CABLES SOUS
MARINS
/s/ Name of Signatory 14/01/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF SOCIETE NATIONALE DES TELECOMMUNICATIONS DU SENEGAL
/s/ Name of Signatory 23/12/1997
_________________________________________________ DATE ___________________
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FOR AND ON BEHALF OF TELEBERMUDA INTERNATIONAL LIMITED
/s/ Chickh ▇▇▇▇▇▇▇ ▇▇▇▇▇ 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELECOMUNICACIONES INTERNACAIONALES DE ARGENTAIN
/s/ Name of Signatory Nov. 24, 1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELECOMUNICACIONES MARINAS, S.A.
/s/ Name of Signatory 12 Nov., 1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELECOMMUNICATIONS SERVICES OF TRINIDAD & TOBAGO LIMITED
/s/ Name of Signatory 28 Nov., 1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELE DANMARK A/S
/s/ Name of Signatory 12/11/1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELEFONICA DE ESPANA, S.A.
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELEFONICA LARGA DISTANCIA DE PUERTO RICO INC.
/s/ Name of Signatory 12 Nov., 1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELEFONOS DE MEXICO S.A. DE C.V.
/s/ Name of Signatory 12 Nov., 1997
_________________________________________________ DATE ___________________
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FOR AND ON BEHALF OF TELEGLOBE CANADA INC.
/s/ Name of Signatory 12 Nov., 1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TELKOM SA LIMITED
/s/ Name of Signatory 15 Dec., 1997
_________________________________________________ DATE ___________________
FOR AND ON BEHALF OF TRANSOCEANIC CABLE SHIP COMPANY, INC.
/s/ Name of Signatory 12 Nov., 1997
_________________________________________________ DATE ___________________
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