EXHIBIT 10.25
ROV
SERVICE AGREEMENT
This agreement (hereinafter referred to as the "Agreement"), is effective as
from the first day of January 1999,
BETWEEN
THE "SERVICE PROVIDERS":
FRANCE CABLES ET RADIO, a corporation organised and existing under the laws of
France, headquartered at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ cedex ▇▇, ▇▇▇▇▇▇
(hereinafter referred to as "FCR"), and FRANCE TELECOM, a company with limited
liability organised and existing under the laws of France, headquartered at ▇,
▇▇▇▇▇ ▇'▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ cedex 15, FRANCE (hereinafter referred to as
"FRANCE TELECOM" or "FT", and with FCR hereinafter collectively referred to as
"FT/FCR") and,
ELETTRA TLC S.P.A., a company organised and existing under the laws of Italy,
having its registered office at ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇
(hereinafter referred to as "ELETTRA")
on one hand,
AND
the companies or legal entities identified in Schedule 1 of this Agreement
(hereinafter collectively referred to as "the Maintenance Authorities")
on the other hand,
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Confidential Treatment has been requested with respect to the portions of
this agreement marked with three asterisks (***) and the redacted material
has been filed separately with the Securities and Exchange Commission.
WITNESSETH
Whereas, certain of the Maintenance Authorities having a common interest in the
efficient and effective maintenance and repair of submarine cable systems in the
Mediterranean, Red and Black Seas and desirous to obtain the support and use of
an undersea dedicated Remotely Operated Vehicle (ROV), as hereinafter defined,
to assist them in their maintenance and repair activities, had selected FT/FCR
to undertake submarine cable Repair, Maintenance and Improvement Services for
the benefit of all the Maintenance Authorities and consequently had signed a ROV
Service Agreement on 01 December 1994 (hereinafter referred to as the "Original
Agreement").
Whereas, additional parties have been entered as Maintenance Authorities under
the Original Agreement after the execution of the said agreement.
Whereas, the Maintenance Authorities, have selected an additional service
provider to undertake submarine cable Repair, Maintenance and Improvement
Services for their benefit: an Italian company named ELETTRA.
Whereas, FT/FCR and ELETTRA have agreed to provide the use of their cableships
(as hereinafter defined) with a ROV workpackage to the Maintenance Authorities,
it being understood that for FT/FCR, FCR will supply the Cable Ship and the ROV
and FRANCE TELECOM will operate them.
Whereas, all the Parties to this Agreement deem more appropriate to execute a
new agreement including clearly the modifications and the necessary additional
provisions rather than to execute an amendment to the Original Agreement,
consequently this Agreement cancels and supersedes the Original Agreement.
NOW, THEREFORE THE PARTIES IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN
EXPRESSED AGREE AS FOLLOWS:
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ARTICLE 1 DEFINITIONS
In this Agreement, unless the context otherwise requires, the following
expressions shall have the meanings hereby assigned to them:
1.1. "ACCOUNTING UNITS" means the units allocated to Maintenance
Authorities and to Designated Cables defined in
Schedule 1 for the purpose of apportioning among
Maintenance Authorities the ROV Costs. These units
are derived by using the formula contained in
Schedule 4 and are listed on such Schedule 4.
These Accounting Units may also be referred to as
"AU".
1.2. "ACCOUNTING UNIT COST" Means the cost allocated to each AU determined by
adding the annual Standing Charges of both ROVs
and the Central Billing Party (as defined in
Article 1.5) service and by dividing this total
amount by the total estimated number of AU as
given in Schedule 4.
1.3. "ASSIGNED PORT" Means the port from which a cable ship hosting the
ROV is at any given time mobilised to undertake
Repair or Maintenance & Improvement work under
this Agreement.
The Assigned Port of the ROV installed on the NC
▇▇▇▇▇▇▇ ▇▇▇▇▇, is La SEYNE-SUR-MER, France.
The Assigned Port of the ROV installed on the PC
TELIRI or PC CERTAMEN is CATANIA - Italy.
1.4. "CABLESHIP" means any of the following vessels when assigned
to the MECMA agreement:
- NC ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or a substitute ship) owned
by FCR and operated by FT
- PC TELIRI or PC CERTAMEN (or a substitute
ship) owned and operated by ELETTRA.
- Any other cableship agreed between the
Maintenance Authorities and the Service
Providers to host a ROV and provide Repair
and Maintenance & Improvement services under
this Agreement
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1.5. "CENTRAL BILLING PARTY" means the Party designated in Article 10.2,
responsible for:
(i) performing all billing and associated
financial functions under this Agreement, and
(ii) preparing the ROV budget and collecting all
actual financial data evidencing the ROV
Costs. The Central Billing Party may also be
referred to as "CBP".
1.6. "DESIGNATED CABLES" means the submarine cables which are listed in
Schedule 1, as amended from time to time, on which
Repair and Maintenance & Improvement shall be
undertaken with the ROV under this Agreement.
1.7. "MAINTENANCE & IMPROVEMENT"
means work carried out on a Designated Cable
involving the use of the ROV, other than a Repair,
and which is deemed by the relevant Maintenance
Authority(ies) to be required in order to reduce
the susceptibility of the Designated Cable to
future service-affecting, faults, howsoever
caused.
1.8. "MANAGEMENT COMMITTEE" means the Committee established by Article 10.1.
1.9. "MECMA" means the MEditerranean Cable Maintenance
Agreement, which came into force on 01 January
1993 and its 3 amendments or any agreement which
may replace it.
1.10."OPERATING ZONE" means the MECMA operational zone in which the ROV
will operate under this Agreement.
1.11."OPERATIONAL DATE" means the date upon which the ROV and the
Cableship are mobilised to provide Repair or
Maintenance and Improvement at the request of
a Maintenance Authority, as mutually agreed
between the Service Providers and such Maintenance
Authority.
1.12."OUTSIDE WORK" means work outside the terms of this Agreement
carried out by an ROV and for which neither
Standing Charges nor Running Costs are chargeable
in any manner under this Agreement.
1.13."REPAIR" means work carried out on a Designated Cable
involving the use of the ROV, at the request of a
Maintenance Authority in
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order to remedy a service-affecting fault suffered
by the Designated Cable.
1.14."ROV" means either:
- the remotely operated vehicle of the SCORPIO
2000 series and its Ancillary Tools described
in Annex 1 of Schedule 7, owned and operated
by FT/FCR or,
- the remotely operated vehicle of the Phoenix 2
series described in Annex 2 of Schedule 7
owned and operated by ELETTRA.
1.15."ROV COSTS" means the aggregate of Running Costs and Standing
Charges.
1.16."RUNNING COSTS" means costs, additional to Standing Charges which
are incurred for the operation of the ROV
specifically as a result of an individual
operation or operations.
1.17."SERVICE PROVIDER(S)" means, as the case may be, either:
- FT/FCR providing Cableship ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
ROV services or,
- ELETTRA providing Cableship TELIRI or
CERTAMEN and ROV services.
1.18."STANDING CHARGES" means the costs of the ROV as detailed in Schedule
2.
1.19."TRAINING EXERCISES" means the activities described in Article 3.2.4.
1.20."TRANSIT TIME" means:
(a) the period of time from departure of a
Cableship from its Assigned Port until its
arrival at the site of the work to be
performed pursuant to Article 3.2, or
(b) the period of time from the departure from
the work site until its arrival in its
Assigned Port, or
(c) the period of time for transit between work
sites, or
(d) the period of time for transit between
Assigned Ports.
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ARTICLE 2 PURPOSE OF THIS AGREEMENT
This Agreement sets forth the terms and conditions under which each ROV will be
used to carry out Repair and Maintenance & Improvement of Designated Cables.
ARTICLE 3 OPERATIONAL USE OF ROV
3.1. OPERATING ZONE
Each ROV shall be assigned to and operated in the Operating Zone, under
this Agreement.
3.2. USES OF ROV
3.2.1. Repair of Designated Cables
Each ROV shall be used primarily for the Repair of
Designated Cables in order to ensure the continuity of
service provided by such cables
3.2.2. Maintenance & Improvement
Subject to the requirement of the Article 3.2.1 being
satisfied, each ROV shall be used for the Maintenance &
Improvement of the Designated Cables on an interruptible basis.
3.2.3. Outside Work
Provided that the availability of the ROV to undertake
Repair or Maintenance & Improvement of Designated Cables is
satisfied the ROV may be used by the Service Provider or a
Scheduled Maintenance Authority for Outside Work. The use of
ROV for Outside Work is subject to the approval of the
Management Committee, which approval shall not be
unreasonably withheld or delayed. The allocation of ROV
costs during such Outside Work is defined in Article 9 below.
In case the Outside Work is relevant to the repair or
maintenance & improvement of cables within the Operating
Zone which are not Designated Cables, the operational
conditions of intervention of the ROV, during its period of
assignment under this Agreement, shall require the prior
agreement of the Management Committee.
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3.2.4. Training Exercises
The Service Providers shall have the opportunity to perform
Training Exercises when the ROV is assigned to the
Agreement. The relevant Service Provider shall provide the
Management Committee with details of the nature, purpose,
duration and location of the proposed Training Exercises.
The use of ROV for Training Exercises is subject to the
approval of the Management Committee, which approval shall
not be unreasonably withheld or delayed. The allocation of
ROV costs during such Training Exercises is defined in
Article 9 below.
ARTICLE 4 ROV AVAILABILITY
4.1. The Service Provider shall use its best efforts to make the ROV
operationally available for use at all times for work on the Designated
Cables except in the following circumstances:
4.1.1. Whilst the ROV is undergoing periodic maintenance or
refurbishment.
4.1.2. From the starting date of any Outside Work until its conclusion.
4.1.3. Whilst the ROV is unavailable by reason of Force Majeure.
4.1.4. Whilst the ROV is damaged to the extent that it cannot perform
Repair or Maintenance & Improvement or it becomes a total loss
or a constructive total loss.
If a ROV becomes a total loss or a constructive total loss,
the Service Provider shall notify the Chairman of the
Management Committee and, if required by the Management
Committee, use reasonable endeavours to provide a substitute
ROV subject to terms and conditions to be proposed by the
Service Provider, and agreed to by the Management Committee.
If a ROV is damaged to such an extent that requires repairs,
the Maintenance Authorities shall bear its Standing Charges
up to a maximum period of 90 (ninety) days from the
beginning of such repairs.
ARTICLE 5 MOBILIZATION OF THE ROV
Unless otherwise agreed between the Service Provider and the Maintenance
Authority requesting the use of the ROV, the ROV shall be mobilised by the
Maintenance Authority from the Assigned Port.
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ARTICLE 6 OPERATING PROCEDURES
6.1. The Maintenance Authority requesting the use of the ROV to undertake
Repair or Maintenance & Improvement on a Designated Cable shall notify its
request by telephone or facsimile to FT/FCR or to ELETTRA, as the case may
be, at the address shown in Schedule 8.
Where notification is given by telephone, it shall be confirmed by
facsimile at the earliest opportunity and at the latest on the first
working day after the notification by telephone.
On receipt by the Service Provider of such notification by a
Maintenance Authority, the Service Provider shall take the necessary
action to ensure that the ROV is mobilised aboard the designated
Cableship without undue delay, typically within 24 hours.
6.2. The Maintenance Authority requesting the use of the ROV shall be
responsible for the engagement and costs of the cableship designated to
host the ROV. Such engagement shall be regulated by a separate agreement
between the cableship operator and the Maintenance Authority.
Notwithstanding the foregoing, the Service Provider shall determine the
suitability of any designated cableship to host the ROV and undertake
Repair or Maintenance & Improvement with it.
6.3. When the Service Provider is notified to commence a ROV operation under
this Agreement, the Service Provider will, within 24 hours, notify the
Maintenance Authorities of the status of use of the ROV, as specified
below:
6.3.1. Upon receipt of notification by the Service Provider that the ROV is
required to undertake an operation or if the ROV is engaged in
Outside Work, the Service Provider shall transmit a notification of
commencement of ROV operation or Outside Work, specifying the
expected duration of such operation or work.
6.3.2. After completion of the ROV operation or work, the Service Provider
shall transmit a notification of completion of a ROV operation or
work.
6.3.3. Upon a ROV's change in operational status eg: standby, Repair,
Maintenance & Improvement or Training Exercises, the Service
Provider shall transmit a notification of the change in status of
the ROV.
ARTICLE 7 OPERATIONAL RESPONSIBILITIES
PLANNING AND DIRECTION
7.1. The Maintenance Authority requiring any Repair or Maintenance &
Improvement work to be carried out may elect to be responsible for planning
and directing such operation which
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shall be performed by the personnel of the Cableship under the control and
supervision of the Engineer in Charge of the Service Providers. If the
Maintenance Authority does not so elect to be responsible then the Service
Provider shall be responsible for the planning and direction of the
operation. In all cases the Maintenance Authority shall make available to
the Service Provider the necessary technical information required for
Repair or Maintenance & Improvement to be carried out to the appropriate
Designated Cable.
The Service Provider shall always be responsible for the planning,
direction and performance of the repair unless the relevant Maintenance
Authority declares otherwise. In this case, a formal agreement will be
signed between the Maintenance Authority and the Service Provider.
7.2. The Maintenance Authority shall appoint one of the authorised
representatives, should more than one be carried, as a "Senior
Representative". The Senior Representative shall be responsible for
planning and directing the Repair or Maintenance & Improvement operation,
pursuant to Article 7.1 above.
ARTICLE 8 STANDING CHARGES AND RUNNING COSTS
8.1. The ROV Costs, including Standing Charges and Running Costs, relating to
the period running from 1st January 1999 to 31st December 1999 are defined
in Schedules 2 and 3 respectively.
8.2. For the following calendar years, the ROV costs shall be submitted to the
Management Committee for approval at least 3 months before the beginning of
the related year.
8.3. ROV Standing Charges shall not increase by more than *** year on year.
ARTICLE 9 ALLOCATION OF ROV COSTS
9.1. ALLOCATION OF STANDING CHARGES
9.1.1. The Standing Charges, adjusted as appropriate pursuant to Article
9.3.2., shall be shared among the Maintenance Authorities for the
Designated Cables in proportion to the Accounting Units allocated to
them in Schedule 4.
9.1.2. Notwithstanding the provision of Article 9.1.1 above the unit cost
of the Accounting Units shall in any case not exceed the maximum
amount of *** per Accounting Unit per year for the whole duration of
this Agreement.
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9.1.3. In the event that the Standing Charges are not approved by the
Management Committee, the Standing Charges of the previous year shall
form the basis of billing until the dispute is resolved.
9.1.4. For the purpose of calculating the Standing Charges applicable to any
particular period of time, the estimated or actual Standing Charges
shall be divided by 335 to give an appropriate daily rate.
9.2. ALLOCATION OF RUNNING COSTS
9.2.1. When a Maintenance Authority requests the use of the ROV for Repair or
Maintenance & Improvement of a Designated Cable, all Running Costs for
the period of such work including those for Transit Time and, if
applicable, mobilisation aboard the designated Cableship and
demobilisation, shall be borne by the Maintenance Authority(ies)
responsible for the Designated Cable under Repair or Maintenance &
Improvement.
9.2.2. Where a Cableship carrying the ROV undertakes a series of ROV
operations without returning to its Assigned Port, the ROV Running
Costs for Transit Time between two or more operations shall be
allocated between the Maintenance Authorities concerned according to
the following procedure.
Time spent in transit before the work starts on the first ROV
operation, time spent in transit between the end of each ROV operation
and the start of the next, and time spent in transit from the end of
the last in the series of ROV operations to the arrival of the
Cableship at its Assigned Port is aggregated to arrive at total
Transit Time. Running Costs for Transit Time are allocated to each ROV
operation in proportion to the distance to be covered by the Cableship
to carry out each stand alone operation.
9.3. ALLOCATION OF ROV COSTS FOR EACH CATEGORY OF USE
9.3.1. Repair, Maintenance & Improvement of Designated Cables
For the period of such work, Standing Charges shall be apportioned
according to Article 9.1, and Running Costs, including those for
Transit Time, shall be allocated according to Article 9.2.
9.3.2. Outside Work
When the ROV shall be used to carry out Outside Work, for the period
of such work including Transit Time and if applicable, mobilisation
aboard the designated
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Cableship and demobilisation, Standing Charges and Running Costs shall
not be charged to this Agreement.
9.3.3. Periods of non-availability
When the ROV is damaged to the extent that it cannot perform Repair or
Maintenance & Improvement the ROV Standing Charges for periods in
excess of 90 days shall not be charged to this Agreement in accordance
with Article 4.1.4.
9.3.4. Training Exercises
For the period of such work, Standing Charges shall be apportioned
according to Article 9.1, while Running Costs, including those for
Transit Time, shall not be charged to this Agreement.
ARTICLE 10 MANAGEMENT COMMITTEE AND CENTRAL BILLING PARTY
10.1. MANAGEMENT COMMITTEE
10.1.1. Organisation:
The Maintenance Authorities and the Service Providers shall
form a Management Committee in which each party shall be
represented by a single representative. A representative may
designate an alternate to participate in a Management
Committee meeting.
10.1.2. Functions:
The Management Committee shall have the following functions:
(a) to amend this Agreement with the unanimous approval of
the Parties,
(b) to review and approve the annual ROV Budgetary estimates
and the final cost of the Accounting Unit,
(c) to review the management of all activities required by
this Agreement,
(d) to approve the use of the ROV for Outside Works,
(e) to approve the charges associated with the CBP function.
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10.1.3. Procedures:
A Party shall be elected to serve as Chairman of the
Management Committee for a term of twelve months by simple
majority of the present members of the Management Committee.
Meetings shall normally be held once a year unless decided
otherwise by the Management Committee. They will be held on
the call of the Chairman or of at least two representatives
of the Parties. At least a 30 days advance notice of each
meeting shall be given with a copy of the draft agenda. In
cases of emergency, such notice period may be reduced.
The quorum for any meeting shall consist of a number of
members representing at least 75 % of the total Accounting
Units according to Schedule 1.
All decisions of the Management Committee shall be subject
in the first instance to consultation among its members who
shall endeavour to make decisions by unanimous consent. In
the event it fails to reach unanimous consent, it shall make
decisions by simple majority votes. Each member shall have a
number of voting rights equal to its number of Accounting
Units as set forth in Schedule 1.
10.2. CENTRAL BILLING PARTY:
10.2.1. FCR shall act as Central Billing Party under this Agreement.
10.2.2. The Central Billing Party shall be responsible for the
preparation and submission of ROV annual budget, submission of
billing, accounting and settlement of all amounts due from the
Maintenance Authorities under this Agreement.
10.2.3. At least once a year the Central Billing Party shall submit a
financial report and accounts to the Management Committee
describing and summarising its activities during the year
concerned.
10.2.4. The CBP costs are 120 000 (one hundred and twenty thousand)
French Francs per year for the duration of the Agreement. This
amount may be revised annually from the 4th year.
The CBP costs shall be submitted to the Management Committee
for approval at least 3 months before the beginning of the
related year.
The CBP costs shall not increase by more than 5% year on year.
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ARTICLE 11 INVOICING PROCEDURE AND ARRANGEMENTS
11.1. Invoices showing the amounts due from the Maintenance Authorities for
their respective shares of the ROV Costs for each quarter shall be sent to
them by the Central Billing Party on or before the 15th day of the month
before the start of each quarter. Such invoices shall be based on the
actual Running Costs incurred and on the approved estimated Accounting
Unit cost and shall include:
(a) Standing Charges based on the estimated
Accounting Unit cost,
(b) Running Costs as incurred quarterly,
(c) interest on invoices not paid when due,
and,
(d) Central Billing Charges in accordance with
Article 11.6.
11.2. On or before the first working day of the last month preceding each
quarter, the Service Providers shall advise the Central Billing Party as
to the details of Standing Charges (including retrospective adjustments)
and Running Costs. Running Costs details shall be included in the bills
next due to be rendered to Maintenance Authorities.
Unless otherwise agreed between the Service Providers and the Central
Billing Party, such details shall be advised in French Francs (FRF).
11.3. Invoices shall be denominated and payable in French Francs (FRF), unless
otherwise agreed between the Maintenance Authorities and the Central
Billing Party.
11.4. Invoices shall be payable by the last working day of the second month of
the quarter to which they relate, or if the issue of an invoice is
delayed, seventy days from the date of issue, whichever is the later.
Invoices not paid by the due date will incur a quarterly compounded
interest charge at a rate of one hundred and twenty five (125%) percent
of the PIBOR for sixty (60) days applicable on the first working day
following the date by which payment is due, which rate will be applied
throughout the period during which the payment is overdue.
PIBOR is the Paris Inter bank Offer Rate for French Francs as published
in "Les Echos".
11.5. On the first working day of the third month of each quarter, the Central
Billing Party shall remit to or settle with the Service Providers, in
French Francs (FRF), the amounts notified by it under Article 11.2.
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11.6. The Central Billing Party shall charge the costs associated with the
performance of the Central Billing function. The charges shall be included
in the Accounting Unit cost.
11.7. If an invoice for a Designated Cable remains unpaid for 180 days after the
due date, the other Maintenance Authorities shall reimburse the Central
Billing Party a proportional share of the unpaid invoice, including a
proportional share of the interests incurred. The amounts paid by such
Maintenance Authorities shall be in proportion to their Accounting Units.
11.8. Nothing contained in this Article shall release the defaulting Maintenance
Authority from its obligations under this Agreement. The defaulting
Maintenance Authority will continue to be billed its share of all ROV
Costs in proportion to the Accounting Units allocated to it. If the
defaulting Maintenance Authority fails to pay any ▇▇▇▇ within 365 days of
its due date, the Service Provider shall be released from any obligation
to undertake work for that Maintenance Authority. At such time, Central
Billing Party shall prepare and issue a revised Schedule 1 which will
exclude the defaulting Maintenance Authority. The defaulting Maintenance
Authority will continue to be excluded from Schedule 1 until all
outstanding invoices, including applicable interest, have been paid in
full.
11.9. In the event that a Maintenance Authority for a Designated Cable has
failed to pay a ▇▇▇▇ within 180 days of the due date, and that Designated
Cable has more than one Maintenance Authority, the Central Billing Party
shall notify such other Maintenance Authority(ies) for that cable of such
defaults for non-payment. Notwithstanding Article 11.7, a Maintenance
Authority for a Designated Cable having more than one Maintenance
Authority shall have the option, at any time within 365 days of the due
date of a ▇▇▇▇, to pay any unpaid ▇▇▇▇ including any applicable interests
of another Maintenance Authority for that cable, and upon such payment,
the defaulting Maintenance Authority shall no longer be deemed to be in
default for non-payment of such ▇▇▇▇ and the cable involved shall not be
excluded from Schedule 1.
11.10. Upon receipt by the Central Billing Party from the defaulting Maintenance
Authority or from another Maintenance Authority for a Designated Cable
having more than one Maintenance Authority of any amount reimbursed by the
other Maintenance Authority(ies) in accordance with Article 11.7, any such
amounts shall be distributed to the other Maintenance Authorities in the
same proportions as those Maintenance Authorities reimbursed the Central
Billing Party under Article 11.7.
ARTICLE 12 ROV COSTS ADJUSTMENT
As soon as possible and not more than 6 months after the end of each year, the
Management Committee shall approve a final cost of the AU based on the total
Standing Charges in accordance with Article 10, and the actual number of AU
according to Schedule 4 for a given financial year.
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Such adjustment shall be reflected to Maintenance Authorities through the next
quarterly settlement, or if near the expiry date of this Agreement, in a final
invoice.
ARTICLE 13 LIABILITY AND INDEMNITY
13.1. Each of FCR, FRANCE TELECOM and ELETTRA shall be liable for all direct
damages to persons or property arising in the discharge of its obligations
under this Agreement to the extent that such damages have resulted from
the intentional or negligent acts or omissions of FCR, FRANCE TELECOM or
ELETTRA, its Agents or Employees. FCR, FRANCE TELECOM or ELETTRA shall
indemnify and hold harmless the Maintenance Authority concerned against
all claims, actions, demands, or judgements for such direct damages.
13.2. Each Maintenance Authority shall be liable for all direct damages to
persons or property arising in the discharge of its obligations under this
Agreement to the extent that such damages have resulted from the
intentional or negligent acts or omissions of the Maintenance Authority,
its Agents or Employees. Such Maintenance Authority shall indemnify and
hold harmless FCR, FRANCE TELECOM or ELETTRA, as appropriate, against all
claims, actions, demands or judgements for such direct damages.
13.3. Each of FCR, FRANCE TELECOM, or ELETTRA shall be liable for injury or
damages to persons or property sustained by its Employees or Agents in the
course of their employment or agency to the extent that such injury or
damages are not caused by the negligence or intentional acts or omissions
of a Maintenance Authority and to that extent will indemnify and hold
harmless the Maintenance Authorities against all claims, actions, demands,
or judgement for damages sustained by employees or Agents of FCR, FRANCE
TELECOM or ELETTRA except to the extent that such claims, actions, demands
and judgements arise out of the negligence or intentional acts of a
Maintenance Authority.
13.4. The Central Billing Party shall exercise due care, diligence and
promptness in the discharge of its duties and the Parties jointly shall
indemnify and hold harmless the Central Billing Party against any claims,
actions, demands or judgements arising out of the Central Billing Party's
performance, purported performance or nonperformance of its function under
this Agreement, except to the extent that such claim, actions, demands or
judgements arise out of the negligence or intentional acts or omissions of
the Central Billing Party.
13.5. Except as stated in Articles 13.1., 13.2., 13.3. and 13.4., no party shall
be liable for any other damages suffered by any Party nor shall any Party
be required to indemnify or hold harmless any other Party against claims
made by any person or entity against any Party for damages arising from
the acts or omissions of any other Party in the discharge of their
respective obligations under this Agreement.
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ARTICLE 14 RELATIONSHIP AMONG THE PARTIES
The relationship between or among the Parties shall not be that of partners and
nothing herein contained shall be deemed to constitute a partnership between
them, and the common enterprise among the Parties shall be limited to the
express provisions of this Agreement.
ARTICLE 15 AMENDMENTS TO AGREEMENT
15.1. This Agreement and any of the provisions hereof may be altered or added to
only by an agreement in writing, signed by a duly authorised person on
behalf of each of the Parties after approval of the Management Committee
on a unanimous basis.
15.2. The inclusion of additional Maintenance Authority(ies) into this Agreement
is governed by the provision of Article 16 hereafter.
ARTICLE 16 INCLUSION OF ADDITIONAL MAINTENANCE
AUTHORITY(IES) AND DESIGNATED CABLES
16.1. Where any entity assumes the maintenance responsibility for any cable
system, or part thereof within the Operating Zone, and if that entity is
not a ▇▇▇▇▇ to this Agreement then that entity may request to be admitted
as a Maintenance Authority under this Agreement. Upon such request, the
signature of the Chairman of the Management Committee on the document of
accession, as set forth in Schedule 5, witnessing the admission of the new
Party shall have the effect of binding all the other Parties as each
itself had signed such document and the Chairman of the Management
Committee shall then transmit a copy of the document to all the Parties.
At the same time the cable system concerned, or part thereof, shall be
entered into Schedule 1 as a Designated Cable.
16.2. When a Maintenance Authority being a Party to this Agreement assumes
responsibility for any cable system, or part thereof, within the Operating
Zone, which is not a Designated Cable, and if that Maintenance Authority
wishes such cable system, or part thereof, to become a Designated Cable,
it shall be entered into Schedule 1 and hence become a Designated Cable
for the balance of the term of this Agreement.
16.3. In case of inclusion of additional Maintenance Authorities and Designated
Cables, the other appropriate Schedules of this Agreement shall be amended
accordingly.
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ARTICLE 17 ASSIGNMENT OR TRANSFER
During the continuance of this Agreement, no Party shall, without the written
consent of the other Parties, sell, assign, transfer or dispose of its rights or
obligations under this Agreement, in whole or in part, except to a legal
successor or subsidiary of such Party or corporation controlling, or under the
same control as, such Party.
Nothing contained in this Agreement shall restrict the right of the Service
Provider to lease equipment subcontract or employ such personnel or agents as it
deems appropriate to fulfil its obligations hereunder.
ARTICLE 18 TERM OF THIS AGREEMENT
This Agreement shall come into force as from the 1st January 1999 and shall
terminate the 31 December 2001.
The Agreement may be renewed by the Parties. At least one year before the date
of such expiry, the Parties shall decide on such a possible renewal and on the
terms and conditions of this renewal. This renewal will be subject to a written
agreement amongst the Parties. The Parties will decide either to amend this
Agreement or to execute a new agreement.
ARTICLE 19 WITHDRAWAL
19.1. If a Maintenance Authority wishes to withdraw from this Agreement, it
shall serve at least one year notice in writing to the other Parties of
its intention to withdraw from this Agreement.
19.2. As soon as practicable and in any event not more than three (3) months
after the serving of any such notice of withdrawal, the other Parties will
decide if this Agreement should continue in force without the withdrawing
Party or if this Agreement will be terminated upon the effective date of
such withdrawal.
19.3. In the event that the non-withdrawing Parties agree that this Agreement
shall continue in force without the withdrawing Party and prior to the
effective date of such withdrawal, the non-withdrawing Parties shall
forthwith make appropriate amendments to the Schedules to this Agreement
and it shall continue to be effective as provided in Article 17. Should
such an agreement not be reached, the Agreement shall terminate upon the
first effective date of any notice of withdrawal served in accordance with
rticle 19.1.
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ARTICLE 20 FORCE MAJEURE
20.1. No Party shall be liable to the others for any failure to carry out its
obligations or delay in performance under this Agreement due to an event
of Force Majeure such as war, civil war, sabotage, piracy, fire,
epidemics, break down in government or public order, seizure by judicial
procedure, strike or lockout, perils of the seas, accident of navigation
or any other circumstance cause or reason beyond its reasonable control.
20.2. The time for performance of the obligations under this Agreement shall be
extended by a reasonable period in the event of such Force Majeure. The
Party suffering from Force Majeure may terminate its participation in this
Agreement after giving reasonable notice in the event Force Majeure has
not ceased 3 months after its occurrence.
ARTICLE 21 AGREEMENT BINDING ON SUCCESSORS
This Agreement shall be binding on the Parties, their respective successors, and
permitted assigns.
ARTICLE 22 INSOLVENCY
Upon the occurrence of each or any of the following events:
(i) if, except for the purposes of re-organisation, any Party is
wound up or a petition is presented or an order is made or a
resolution is passed for the winding up of any Party or a
meeting is convened for the purpose of considering any such
resolution;
(ii) if any Party is placed under official management, that is
if, pursuant to a resolution of creditors or members of that
Party or an order of a court, a person is appointed to take
custody of all or part of the property of that Party and to
conduct its business and manage its affairs and comply with
the legislation in respect of companies applicable in the
place where he is so appointed, or if any Party causes a
meeting of its members or creditors to be summoned for the
purpose of placing it under official management;
(iii) if any Party makes default under any charge or security in
favour of any creditor of that Party;
(iv) if any indebtedness of any Party becomes due and payable
prior to the stated maturity thereof as a result of a
default or is not paid upon the maturity thereof;
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(v) if an inspector of all or any part of the affairs of any
Party is appointed pursuant to the legislation in respect of
companies applicable in the place of incorporation of that
Party or in a place where that Party carries on business;
(vi) if a compromise or arrangement is proposed between any Party
and its creditors or any class of them or if an application
is made to a court for an order summoning a meeting of
creditors or any class of them of any Party;
then any Party affected by each or any of the above listed events shall
immediately inform all the other Parties thereof, and all the Parties
shall then consult to decide what further action is necessary.
ARTICLE 23 INSURANCE
(a) Each Service Provider respectively shall be responsible for obtaining
its necessary insurance coverage.
(b) If requested by a Maintenance Authority, the Service Provider shall
provide individually and on a confidential basis to that Maintenance
Authority copies of relevant insurance policies and, if applicable,
copies of the booklet giving details of the Protection and Indemnity
cover and proper evidence of the payment of all premiums.
ARTICLE 24 GOVERNING LAW
This Agreement shall in all respects be governed by and be construed in
accordance with the laws of Switzerland Canton of Geneva.
ARTICLE 25 ARBITRATION
(a) All disputes arising in connection with this Agreement and which cannot
be settled by amicable negotiation to the mutual satisfaction of the
Parties concerned, the dispute shall be finally settled under the Rules
of Conciliation and Arbitration of the International Chamber of
Commerce in Paris as in effect on the date hereof by one or more
arbitrators appointed in accordance with the said Rules.
(b) The site of the arbitration shall be Geneva (Switzerland). The language
of the arbitration shall be English. The arbitrators will apply the
procedural rules of arbitration of the International Chamber of
Commerce. Any award rendered shall be final and conclusive and
judgement thereon may be rendered in any court having jurisdiction for
its enforcement.
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(c) The performance of this Agreement by the Parties shall continue during
such arbitration or legal proceedings.
ARTICLE 26 EXECUTION AND COUNTERPART
This Agreement shall be executed in 8 counterparts in the English language and
each counterpart when delivered shall be considered an original. New Maintenance
Authorities shall be added to this Agreement by means of a Document of Accession
as set forth in Schedule 5 and the Document of Accession shall for each such
addition be executed in two counterparts in the English language and certified
copies shall be delivered to all the Parties.
ARTICLE 27 INTERPRETATION
All references to the Party(ies), Article(s), and Schedule(s) refer to the
Party(ies), Article(s) and Schedule(s) under this Agreement. In addition, and
where the context so requires, the singular shall be taken to mean the plural
and the plural shall be taken to mean the singular.
ARTICLE 28 ENTIRE AGREEMENT
This Agreement together with the Schedules hereto constitutes the entire
agreement between the Parties in relation to its subject matter and supersedes
all prior verbal or written understandings between and among the Parties.
This Agreement supersedes all prior verbal or written understandings between the
Parties and constitutes the entire agreement with respect to the subject matter
of this Agreement
This Agreement includes the following documents which are attached hereto and
incorporated herein by reference.
Schedule 1 Maintenance Authorities and Designated Cables
Schedule 2 Standing Charges
Schedule 3 Running Costs Estimate
Schedule 4 Accounting Units Calculation and Billing Schedule
Schedule 5 Document of Accession to the ROV Service Agreement
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Schedule 6 Request for inclusion of a Cable system in the ROV Service
Agreement
Schedule 7 ROV description
Annex 1: Scorpio 2000
Annex 2: Phoenix II
Schedule 8 Representatives of the Service Providers - Mailing Addresses
and Contacts for Maintenance Purposes
ARTICLE 29 HEADINGS
For the purposes of interpretation of this Agreement and Schedules, all headings
thereof shall be deemed not to form part of this Agreement.
ARTICLE 30 REPRESENTATIVES AND CORRESPONDENCE
The Parties shall inform each other of their representatives for the purpose of
correspondence between the Parties.
ARTICLE 31 NOTICES
(a) Any notice or consent required or permitted hereunder shall be given in
writing or confirmed in writing as the context so requires and shall be
deemed to be duly given if deposited by hand at, or despatched by
airmail of the most expeditious class or by fax or electronic mail
addressed to the registered office last quoted by the Party to whom it
is addressed.
(b) Unless it is expressly provided for herein or otherwise agreed, any
such notice or consent shall be deemed to be served ten days from the
date of despatch.
ARTICLE 32 PUBLICITY
Any publicity or news releases regarding this Agreement shall not be issued or
published without the prior agreement of the Parties.
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ARTICLE 33 CONFIDENTIAL INFORMATION
Information furnished by one Party to another shall be kept confidential by the
Party receiving it and shall be used only for the purposes of this Agreement,
and may not be used for any other purposes without the prior written consent of
the Party owning the Information, unless such information:
(i) was previously known to the receiving Party free of any
obligation to keep it confidential, or
(ii) has come into the public domain other than by a breach of
confidentiality by the receiving Party, or
(iii) is received from a third party without similar restriction
and without breach of this Agreement, or
(iv) is necessary or proper disclosure under any applicable law,
rule or regulation or pursuant to the direction of any
Governmental Entity or Agency having jurisdiction in any
country of the Parties.
ARTICLE 34 PERFORMANCE OF AGREEMENT
The performance of this Agreement by the Parties hereto shall be contingent upon
either:
(i) the continued operation of at least one Designated Cable; it
being understood that the Parties shall consult each other
in such event and shall confer to decide further action
including the termination of this Agreement
or
(ii) the necessary government approvals.
ARTICLE 35 SEVERABILITY
If any of the provisions of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render unenforceable
the entire Agreement, but rather the entire Agreement shall be construed as if
not containing the particular invalid or unenforceable provision or provisions
and the rights and obligations of the parties shall be construed and enforced
accordingly.
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ARTICLE 36 WAIVER
The waiver of any breach of any term or condition of this Agreement shall not be
deemed to be a waiver of any other breach of the same or any other term or
condition of this Agreement. No waiver shall be valid unless it is written and
signed on behalf of the Party making the waiver.
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TESTIMONIUM
In witness whereof the parties hereto have executed this Agreement the day and
year here above written.
FOR AND ON BEHALF OF ELETTRA ITALY
/s/ Name of Signatory 16/3/99
______________________________________________ DATE ______________________
FOR AND ON BEHALF OF FLAG
/s/ Name of Signatory 15/3/99
______________________________________________ DATE ______________________
FOR AND ON BEHALF OF FRANCE CABLE RADIO FRANCE
/s/ ▇. ▇▇▇▇▇ 15/3/99
______________________________________________ DATE ______________________
FOR AND ON BEHALF OF FRANCE TELECOM FRANCE
/s/ J. Genoux 19/3/99
______________________________________________ DATE ______________________
FOR AND ON BEHALF OF SEAMEWE 1
/s/ J. Genoux 19/3/99
______________________________________________ DATE ______________________
FOR AND ON BEHALF OF SEAMEWE 2
/s/ J. Genoux 19/3/99
______________________________________________ DATE ______________________
FOR AND ON BEHALF OF SOCIETE DES TELECOMMUNICATIONS
INTERNATIONALES DE DJIBOUTI (S.T.I.D),
REPUBLICQUE DE DJIBOUTI
/s/ Name of Signatory 17/3/99
______________________________________________ DATE ______________________
FOR AND ON BEHALF OF TELECOM ITALIA, ITALY
/s/ Name of Signatory
______________________________________________ DATE ______________________
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