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 ................