|
●
Network >
Submarine Cable Systems
> IRU Agreement
Indeafeasible Right of Use Agreement between
Cyprus Telecommunictions Authority and <FULL NAME OF PURCHASER> in the CYPRUS - GREECE OPTICAL SYSTEM (APHRODITE 2)
This agreement made and entered into this <day as no.> day of
<month> <year as no.>
BETWEEN
ON ONE SIDE:
CYPRUS TELECOMMUNICATIONS AUTHORITY, having its principal office
at Telecommunications Street P.O. Box 4929, CY-1396 Nicosia
Cyprus,(hereinafter called "CYTA" which expression shall include
its successors);
AND ON THE OTHER SIDE:
<FULL NAME, address> (hereinafter called "<SHORT NAME>" which
expression shall include its successors)
hereinafter called the "PURCHASER".
WITNESSETH
WHEREAS, pursuant to the Memorandum of Understanding signed on 7
March 1991, OTE, the Hellenic Telecommunications Organisation
and having its main office at 15 Stadiou Street, ATHENS,
GR-10246, Greece, herein called "OTE" and CYTA have agreed to
provide, construct, operate and maintain a submarine link
constituted of two direct fiber optic pairs between Chania and
Yeroskipos (hereinafter called "APHRODITE 2") dedicated for
telecommunication services between and among points in or
reached via Greece and Cyprus and points beyond, and
WHEREAS, APHRODITE 2 consists of the following segments:
(a) SEGMENT T1: The terrestrial segment at YEROSKIPOS, Cyprus
SEGMENT T2: The terrestrial segment at CHANIA, Greece
The Segments T1 and T2 shall each consist of an appropriate
share of the land and buildings at the specified locations for
the cable landing, the cable station and the cable rights-of-way
and ducts between the cable station and its respective Cable
Landing Point, and an appropriate share of common services and
equipment other than services and equipment associated with and
necessary for:
- Segment S and
- inland extensions and
- multiplex equipment necessary to establish transmission speeds
below the Segment Interface
(b) SEGMENT S shall consist of the whole of the submarine cable
system provided between and including the Segment Interfaces at
the Cable Stations at CHANIA and YEROSKIPOS, and shall contain
two (2) fiber pairs.
SEGMENT S shall include:
(i) all transmission, power feeding and special test equipment
directly associated with the submersible plant, located in their
respective cable stations;
(ii) the power equipment provided wholly for use with the
equipment listed in (i) above;
(iii) the transmission cable equipped with appropriate repeaters
and joint housings.
Each optical fiber pair of the submarine Segment shall provide
four (4) Basic System Modules.
WHEREAS, CYTA owns a portion of the capacity provided by
APHRODITE 2, and
WHEREAS, part of this capacity is intended to be granted as
Indefeasible Right of Use (IRU) for use between International
Telecommunication Entities.
WHEREAS, the PURCHASER wishes to purchase from CYTA on an IRU
basis, the right to use the half interests in a number of
Minimum Assignable Units of Ownership in APHRODITE 2, and
WHEREAS, CYTA is willing to grant the IRU of the half interests
in a number of Minimum Assignable Units of Ownership in
APHRODITE 2, and
WHEREAS, the Parties to the present Agreement (hereinafter
called "the Parties") want to define terms and conditions
according to which CYTA grants the PURCHASER the IRU in the
number of HALF MAUOs in APHRODITE 2 indicated in article 2 of
this Agreement.
NOW, THEREFORE, the Parties according to the mutual engagements
hereto expressed, covenant and agree with each other as follows:
(1) The following definitions shall apply to these terms used in
this Agreement:
Segment Interface
The Nominal 140 Megabits per second (Mbit/s) Digital
Input/Output Ports on the digital distribution frame (excluding
the digital distribution frame itself) shall be regarded as the
interface location where the 139.264.000 bits per second digital
line section connects with other transmission facilities or
equipment.
Bit Sequence Independence
The property of a binary transmission channel,
telecommunications circuit or connection, that permits all
sequences of binary signal elements to be conveyed over it at
its specified bit rate, without change to the value of any
signal elements (refer to CCITT Rec. G 701, Paragraph 2, Blue
Book Vol. III - FascicleIII.3, November, 1989).
Basic System Module
A Basic System Module of APHRODITE 2 shall consist of a
139.264.000 bits per second digital line section with interface
in accordance with CCITT Recommendation G.703 (Blue Book Vol.
III - Fascicle 4).
Design Capacity
The capacity of SEGMENT S provided under the relevant supply
contract.
Fundamental Unit of Ownership
A Fundamental Unit of Ownership in APHRODITE 2 shall be a
theoretical Unit consisting of a single bit per second in each
direction of transmission.
Minimum Assignable Unit of Ownership
A unit of ownership designated as the minimum practical unit of
ownership, consisting of 72.533,333 Fundamental Units of
Ownership. The Minimum Assignable Unit of ownership (hereinafter
called "MAUO") in APHRODITE 2 shall consist of 64.000 usable
bits per second and an additional 8.533,333 bits per second for
multiplexing each of the 1.920 MAUOs in a Basic System Module.
System Ready for Service (RFS) Date
The date of placing APHRODITE 2 into operation, namely, 30
September 1994.
Telecommunications Entity:
Any entity authorized or permitted under the laws of its
respective country to acquire and use facilities for the
provision of telecommunications services.
Terminal Parties:
The Terminal Parties are OTE and CYTA.
Co-owners :
As specified in the Construction and Maintenance Agreement of
APHRODITE 2
(2) CYTA grants the PURCHASER the IRU of:
<IRU capacity purchased> HALF MAUOs in APHRODITE 2.
These half-MAUOs will be used for supplying communication
services between points reached in or reached via <Purchaser's
country> and points in or reached via Greece.
The APHRODITE 2 Terminal Parties shall both use all reasonable
efforts to furnish and maintain, or cause to be furnished and
maintained, in working order (according to ITU-T
recommendations), for the duration of this Agreement, the
necessary facilities in each of their respective countries as
may be reasonably required for extending capacity in APHRODITE 2
assigned to the PURCHASER for the purpose of handling
communications transiting the country involved.
(3) For the Indefeasible Right of Use in the half-MAUOs, as
indicated in article 2 above, granted to the PURCHASER pursuant
to this Agreement, the PURCHASER shall pay:
(a) an amount of <total IRU price as words in FF> (<this IRU
price as number in FF>) .
Taxes, if any, shall be billed according to the laws and rates
in force at the billing time.
CYTA will render a bill representing the amount quoted above in
this article 3 (a).
The PURCHASER will settle such bills within forty-five (45) days
from the date on which the bill is rendered.
(b) The PURCHASER shall pay from the date of signature of the
present Agreement its share of the costs of operating and
maintaining APHRODITE 2. The Central Billing Party, being CYTA,
as stipulated by the Construction and Maintenance Agreement of
APHRODITE 2, will render quarterly bills to the PURCHASER from
the date of signature of the present Agreement, for the amount
equal to the portion of the costs of operating and maintaining
APHRODITE 2 during each quarter, allocable to the half-MAUOs
granted to the PURCHASER hereunder on a pro rata basis. The
PURCHASER will settle such bills within forty-five (45) days
from the date on which the bill is rendered.
All bills rendered under subparagraph (a) and (b) of this
paragraph, not paid when due, shall accrue extended payment
charges at a rate equal to One Hundred and Twenty Five per cent
(125%) of the official commercial Bank lending rate applicable
in Cyprus, on the day following the date payment of the bill was
due. In the event that applicable law allows the imposition of
extended payment interest charges only at a rate less than that
established in accordance with this article 3 (b), extended
payment charges shall be at the highest rate permitted by such
applicable law.
If the bills are not paid by the PURCHASER within nine (9)
months after the end of the month in which the bills are
rendered, CYTA will be entitled to terminate automatically the
present Agreement without any compensation for the PURCHASER.
This termination of the Agreement will be possible at any time,
even during the first 25 years.
(4) The financial arrangements arising under this agreement
regardless of their nature, shall be quoted in French Francs
(FF).
(5) During the term of this Agreement and subject to clause 6
hereinbelow, the PURCHASER shall bear the portion of the capital
cost and of the operating and maintenance costs of APHRODITE 2
allocable to the half-MAUOs made available to the PURCHASER
under this Agreement. To this end, as changes occur into the
PURCHASER's share of the capital cost of APHRODITE 2 for any
reason, including, but not limited to, the addition or removal
of any property from APHRODITE 2, or a change in the capacity of
APHRODITE 2, payments shall be made, if necessary, between the
Parties hereto, representing adjustments to the amounts
theretofore paid by the PURCHASER pursuant to this Agreement.
Consequently, the share of the operating and maintenance costs
shall be appropriately adjusted.
(6) (a) If the APHRODITE 2 co-owners agree to increase the
design capacity of APHRODITE 2, the PURCHASER shall have the
option, upon payment of its proportionate share of any
additional capital cost involved, to have the number of half-MAUOs
granted to it pursuant to this Agreement increased in the same
proportion as the total number of MAUOs in APHRODITE 2 is
increased, except that such option shall not extend to fractions
of half-MAUOs. Such option shall be exercised in writing within
three (3) months after receipt by the PURCHASER of written
notice from CYTA of a proposed increase in the capacity of
APHRODITE 2. If the PURCHASER elects not to exercise said
option, or if the exception with respect to fractional half-MAUOs
should become applicable, an appropriate adjustment will be made
in the PURCHASER's payments with respect to the capital,
operating and maintenance costs of APHRODITE 2.
(6) (b) In the event that the total number of MAUOs which
APHRODITE 2 is capable of providing upon its completion is
reduced as a result of physical deterioration, or for other
reasons beyond the control of CYTA during the term of this
Agreement, the number of half-MAUOs granted to the PURCHASER
hereunder shall be reduced in the same proportion as the total
number of MAUOs is reduced, except that such reduction shall not
extend to fractions of half-MAUOs. If the above exception with
respect to fractional half-MAUOs should become applicable, an
appropriate adjustment will be made in the PURCHASER's payments
with respect to the capital, operating and maintenance costs.
(7) CYTA shall not be liable to the PURCHASER for any loss or
damage sustained by reason of any failure in or breakdown of
APHRODITE 2 or of the facilities associated with APHRODITE 2 or
for any interruption of service, whatsoever shall be the cause
of such failure, breakdown or interruption, and however long it
shall last.
(8) Subject to the previous written consent of CYTA, the
PURCHASER shall have the right to increase the communication
capability of the capacity granted to it hereunder by the use of
equipment which will more efficiently use such capacity;
provided that the use of such equipment does not cause an
interruption of or interference to the use of any other capacity
in APHRODITE 2 or prevent the use of similar equipment by other
users. The PURCHASER shall indemnify CYTA and bear the cost of
any additional protective apparatus reasonably required to be
installed because of the use of such facilities by the
PURCHASER, any lessee of the PURCHASER, or any customer or
customers of the PURCHASER or any such lessee, and the cost of
any possible damage thereto related. A consent granted under
this clause may be revoked at any time by CYTA, after giving the
PURCHASER a reasonable time to rectify the cause of that
problem. Such equipment, if used, shall not constitute a part of
APHRODITE 2. Similar obligations will be included in any such
Agreements made with other users of APHRODITE 2.
(9) The half-MAUOs in APHRODITE 2 granted to the PURCHASER
hereunder will be maintained or caused to be maintained in
efficient working order by CYTA. In this regard, at a time
agreeable to CYTA and the PURCHASER, the half-MAUOs granted to
the PURCHASER hereunder shall be made available to CYTA to make
such tests and adjustments as may be necessary for such circuits
to be maintained in efficient working order.
(10) In the event of liquidation of APHRODITE 2, or any part
thereof, by sale or other disposition, during the term in which
this Agreement is in force, CYTA will share with the PURCHASER
the net proceeds of any such sale or disposition in the
proportion in which the PURCHASER contributed to the cost of
APHRODITE 2.
(11) It is understood and agreed between the parties hereto that
the Agreement shall not be construed as constituting a transfer
of or license under patent rights or trade marks by CYTA to the
PURCHASER with respect to any apparatus, systems or method used
by the PURCHASER in connection with the use of the half-MAUOs.
In respect to claims of patent rights or trade mark infringement
made by third persons, (i) CYTA will hold the PURCHASER harmless
against claims arising out of the use by the PURCHASER of the
half-MAUOs provided pursuant to this Agreement, and (ii) the
PURCHASER will hold CYTA harmless against claims arising out of
combining such half-MAUOs or using such half-MAUOs in connection
with any apparatus, system or method provided by the PURCHASER.
(12) CYTA shall keep such books, records, vouchers and accounts
of all of their costs with respect to the provision and
maintenance of APHRODITE 2, as may be appropriate to support
their costs for a period of five years from the date on which
the corresponding bills were rendered to the PURCHASER.
(13) The performance of this Agreement by the Parties is
contingent upon the provision and continued operation of
APHRODITE 2, and upon the obtaining and continuance of such
approvals, consents, governmental authorizations, licenses and
permits as may be required or be deemed necessary for this
Agreement by the Parties hereto and as may be satisfactory to
them. The Parties shall use their best endeavors to obtain and
continue such approvals, consents, authorizations, licenses and
permits.
(14) Unless otherwise stipulated, no total or partial transfer
of the IRU granted under this Agreement or of any right or
obligation resulting from the Agreement by either of the Parties
shall be considered valid without the written consent of the
other Party, except to a successor or assign or subsidiary of
such Party, or corporation controlling, or under the same
control as such Party, in which case written notice shall be
given in a timely manner by the Party making said transfer.
(15) Amendments to this Agreement or to any of the conditions
contained herein shall be effected by means of another written
agreement, signed on behalf of each of the Parties by a person
duly authorized to do so.
(16) The relationship between the Parties hereto shall not be
that of partners and nothing herein contained shall be deemed to
constitute a partnership between them.
(17) Termination of this Agreement shall not terminate the
provisions of Article 10 above, or prejudice the operation or
effect thereof.
(18) (a) This Agreement shall become effective on the day and
year first above written and shall continue in effect for the
duration of APHRODITE 2. However, after the initial twenty five
(25) years period of effectiveness of APHRODITE 2 as from the
link RFS date, the Parties shall have the right to terminate the
present Agreement at any time upon one year's written notice.
(18) (b) CYTA may terminate this Agreement forthwith by notice
in writing if the PURCHASER enters into liquidation whether
compulsory or voluntary, otherwise than for the purposes of
amalgamation or reconstruction or compound with their creditors
or have a receiver appointed of all or any part of their assets
or take or suffer any similar action in consequence of debt. In
such an event the PURCHASER shall not be entitled to any
repayment of any amounts paid pursuant to this Agreement.
(18) (c) Either Party may terminate this Agreement forthwith by
notice in writing if the other Party is in breach of this
Agreement. In such an event if the PURCHASER is the Party in
breach it shall not be entitled to any repayment of any amounts
paid pursuant to this Agreement.
(18) (d) Any notice of termination pursuant to subparagraph (a)
of this paragraph shall be signed by duly authorized
representatives of CYTA or the PURCHASER and shall be deemed to
have been served at the expiration of thirty (30) days from the
date of mailing of a registered letter containing such notice
addressed to the office of the other Party.
(18) (e) Unless otherwise specified, all notices, requests,
demands and other communications under the present Agreement or
in connection herewith shall be made to the Parties in writing
and shall be sent by telex or by registered letter with
acknowledgment of receipt to the addressee at the following
addresses:
Cyprus Telecommunications Authority
International Communications
Commercial Services
Telecommunications Street
P O Box 4929
CY1396 Nicosia
Cyprus
Telex: 3288 CYTA ADM CY
<FULL NAME of PURCHASER>
<address of PURCHASER>
<fax & telex of PURCHASER>
Each Party may modify its notification name or address by telex
or registered letter with acknowledgment of receipt sent to the
other Party.
Any notice, request, demand or other communication so given or
made shall be deemed (unless the contrary is proved) to have
been received if:
sent by telex, twenty-four (24) hours after the time of
transmission.
sent by registered letter, at the date shown on the postal
receipt.
(19) All disputes arising in connection with the present
Agreement which cannot be settled to the mutual satisfaction of
the Parties shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce, by three arbitrators, one appointed by each party and
the third appointed by mutual agreement of the two existing
arbitrators. Arbitration will take place in London U.K in the
English language. This Agreement shall be governed by, and
construed in accordance with, English law.
(20) This Agreement shall be executed in two (2) counterparts in
English and each such counterpart when so executed and delivered
shall be an original; and each such counterpart shall together,
as well as separately, constitute one and the same instrument.
(21) The obligations of either Party to this Agreement shall be
suspended if by reason of force majore, rout, riot, strike, war,
warlike operations, terrorist activity, fire or explosion the
performance of all or any provision, except provisions as to
payment of services rendered, becomes impossible. The suspension
shall only last for as long as the force majore or other event
as above lasts and such additional time as it is reasonably
required for the restoration of the damage caused.
(22) This document contains the whole agreement between the
parties relating to the granting by CYTA to the PURCHASER of the
IRU, specified in paragraph 2 hereto and cancels all previous
oral or written agreements, understandings or representations
relating to the same matter if any.
IN WITNESS WHEREOF the Parties hereto have severally subscribed
these presents or caused them to be subscribed in their name and
behalf by their respective officers thereunto duly authorized.
for the CYPRUS TELECOMMUNICATIONS AUTHORITY (CYTA)
by
...................................................................
for <FULL NAME of PURCHASER> (<SHORT NAME of Purchaser>)
by ................
|
