Public - Terms and Conditions

Terms and Conditions for Occasional Commercial Use (OCU)
of SEA-ME-WE 3 Capacity

These Terms and Conditions including its annexes and the OCU Contract Form will constitute the OCU Contract.

1. General Conditions

1.1 Eligibility
OCU service provisioning shall be eligible to all 'Carriers', where 'Carriers' are defined as international telecommunication entities permitted under the laws of their respective country to use international cable capacity.

The 'Carrier' applying for OCU shall hereinafter be referred to as the 'Lessee'.

1.2 Availability of OCU
OCU shall be provided only if:-

(i) there is sufficient SEA-ME-WE 3 cable capacity which is ready for activation by being equipped with appropriate terminal equipment (Segment S & Segment T, referring to the relevant submarine cable system and terrestrial station line systems respectively) in the requested path, (hereinafter referred to as the ‘Physical Capacity’) to provide OCU through to the requested duration which is not utilised by other duly authorised uses in SEA-ME-WE 3; and

(ii) the OCU provision does not restrict or interfere with the operation of SEA-ME-WE 3.

If either of the above two conditions are not met or lost, the following consequences of OCU may occur:-

1.2.1 Non-Acceptance of OCU Application

The OCU application of the Lessee will be not accepted by the Network Administrator (hereinafter referred to as the 'NA').

1.2.2 Termination of OCU Contract

The OCU application of the Lessee which was duly accepted by the NA will also be terminated in the following cases:-

(a) activation of the SEA-ME-WE 3 owner’s capacity, and IRU capacity

(b) activation of capacity for any other temporary or occasional use, such as in-system or external cable restoration and testing.

(c) Lessee's right to terminate OCU Contract after a continuous interruption of more than 24 hours.

(d) proof that a Lessee has been re-selling or making available OCU granted

under these terms and conditions to a third party (being a carrier)

1.3 Use of Capacity
OCU will be provided under the following conditions:-

1.3.1 Paths

The capacity made available for OCU shall be used in specific paths (where ‘paths’ is defined as the connectivity between cable stations independent of the actual physical link).

1.3.2 Cable Station Access

Access of all OCU will be required at the relevant cable station for the Lessee to exercise OCU. Such relevant cable access will be a lease of the cable station facility (i.e Segment T) specific to the OCU. The Terminal Party providing such access of the cable station facility automatically leases access of their cable station facility in order for the Lessee to exercise OCU. The Terminal Party authorizes the NA to act on its behalf during the execution of the OCU Contract.

1.3.3 Purpose

Provision of OCU to the Lessee is solely for the use of the Lessee in providing its telecommunications services.

1.3.4 Matching Capacity

For bilaterally agreed OCU, such OCU provided to the Lessee will be established as half interests in a whole circuit. The Lessee's correspondent provides the matching half interests where such matching capacity will be covered either by:-

(i) OCU or

(ii) occasional use of its unassigned SEA-ME-WE 3 capacity.

A Lessee may also combine a half-interest OCU with its own half-interest unassigned ownership capacity to form a whole circuit.

1.3.5 Re-sale

The Lessee shall not re-sell or make available OCU granted under these Terms and Conditions to any third party (being a carrier). If, based upon available information regarding usage and payment liability, a SEA-ME-WE 3 Party believes a Lessee and/or their correspondent is engaged in re-selling or making available OCU to a third party (being a carrier), the SEA-ME-WE 3 Party will report the incident to the SEA-ME-WE 3 Management Committee for review and consideration of termination without refund.

1.3.6 Operational Conformity

The Lessee shall be responsible for any facility or services using OCU capacity which must be connected or used in a manner which does not interfere with the effective operation of the SEA-ME-WE 3 Cable System or any of its components.

1.3.7 Network Administrator's Right

The Network Administrator reserves the right to monitor signals transmitted in OCU to ensure that conditions set forth are met.

1.4 Bandwidth of OCU
OCU shall be provided in bandwidths of VC-3 (45Mbps) and VC-4 (155Mbps) in a specific path.

1.5 Timing and Duration
A Lessee's request for the provision of OCU can be made at anytime.

The duration of a single OCU lease shall be a minimum of one week and not longer than six weeks. Applications for OCU longer than six weeks will require approval by the SEA-ME-WE 3 Initial Parties. Such a request for OCU shall not be confused with the case (as per paragraph 1.7 of these Terms and Conditions) whereby an OCU of longer than six weeks is achieved through extension.

1.6 Frequency of OCU
In a specific path, OCU shall be limited to two uses per calendar year by the same Lessee, unless otherwise decided by the SEA-ME-WE 3 Initial Parties, with at least a one day interval between the two uses.

1.7 Extension of OCU
Extension of OCU will be permitted at the discretion of the NA (where it physically can be accommodated) as long as the extension plus original planned duration remains within the maximum six week limit, in principle. The Lessee must submit a written request of OCU extension to the NA. The request for the OCU extension will be considered on receipt of a matching written request by the Lessee’s correspondent. The Lessee will be limited to one request for OCU extension per OCU order.

Instances calling for an extension of OCU which leads to an OCU duration beyond six weeks will be at the discretion of the NA.

Extension charges shall apply.

1.8 Cancellation of OCU
Cancellation of OCU by the Lessee will be permitted at anytime. The Lessee must submit a written notice of cancellation to the NA. The NA shall cancel the OCU on receipt of a matching written cancellation notice by the Lessee’s correspondent. Cancellation charges shall apply.

1.9 Backhaul facilities
The provision of backhaul facilities is outside the scope of this Contract. The Lessee shall pursue separate bilateral arrangements with Terminal Parties for backhaul capacity (or other relevant backhaul capacity providers for its interconnection to SEA-ME-WE 3 OCU if needed). Such separate arrangements will not affect the validity of this OCU Contract.

2. Application and Acceptance

2.1 Application
For the provision of OCU, the Lessee shall make an application by:-

(i) completing and submitting the OCU Contract Form to the NA; and

(ii) paying the appropriate OCU charge (as confirmed by NA) hereinafter referred to as the 'OCU Deposit' to the designated bank account of the SEA-ME-WE 3 Central Billing Party hereinafter referred to as the 'CBP'.

The application is deemed to be valid for NA's processing, provided that:

(a) the OCU Request Form (as provided by the NA to collect all the required information) is duly filled and received by the NA at least 5 weeks before the planned commencement of OCU.

(b) if a Lessee is a non SEA-ME-WE 3 Party making its first request for capacity in SEA-ME-WE 3 (either IRU or OCU), it is required to submit its international telecommunications licence to the NA together with the OCU Request Form for SEA-ME-WE 3 Initial Parties to approve.

(c) the OCU Contract Form is received by the NA at least 3 weeks before the planned commencement of OCU.

(d) the OCU Deposit is received by the CBP at least 2 weeks before the planned commencement of OCU.

(e) the arrangement of the matching half interest by the Lessee's correspondent is completed by the similar application to the NA and applicable OCU Deposit is made to the CBP.

2.2 Acceptance
The Lessee's application, so confirmed to be valid, will be accepted and the necessary capacity activation arrangement will be taken by the NA, only if the conditions of OCU availability as provided for in paragraph 1.2 of these Terms and Conditions is confirmed by the NA to be satisfied. The NA shall return the signed and dated OCU Contract Form to the Lessee. Upon such notification by the NA, the Lessee is deemed to enter into the contract with the SEA-ME-WE 3 Parties for the provision of OCU under this Terms and Conditions.

In the case of non SEA-ME-WE 3 Parties making their first application for OCU, Initial Parties acceptance of OCU will be at their discretion.

 

3. Priority among OCU Applications
In determining the priority amongst multiple OCU applications or in-service OCU, a 'first-come-first-serve' principle is adopted when it is deemed that such multiple OCU cannot be accommodated by the Physical Capacity. Such priority will be determined by the date of written acceptance (as per paragraph 2.2 of these Terms and Conditions).

If the conditions provided in paragraph 1.2 of these Terms and Conditions are not met or lost, an earlier ordered OCU will have precedence over a later ordered OCU.

This principle will apply in the following cases:-

3.1 Acceptance
Earlier ordered OCU shall be accepted.

3.2 Termination of OCU Contract
Later ordered OCU shall be terminated.

3.3 Pre-emption & Interruption
Later ordered OCU shall be pre-empted or interrupted.

4. Billing & Charging
All financial transactions within the scope of this document are in US Dollars. The Lessee will receive an initial invoice for their OCU Deposit and a final invoice including all adjustments (if necessary).

4.1 Charges for OCU services
Charges for OCU consist of a Segment S and a Segment T component. For simplicity, OCU charges listed in Table 1 annexed herewith are a combined Segment S and Segment T charge for each path in SEA-ME-WE 3.

The charges listed in Table 1 are based on a half VC-3/week.

VC-4 (155Mbps) OCU charges are three times the VC-3 (45Mbps) charge.

OCU will be charged at the weekly rate for the first week and daily rates will apply thereafter. The daily rate determination (combined Segment S & Segment T OCU charge) will be based on a simple pro-rated calculation of the weekly rate. Fractional day charges are not considered. Any requirement inclusive of a fractional day will be "rounded-up" to the next day.

A minimum Segment S and Segment T OCU charge of one week will apply (hereinafter referred to as the 'Minimum OCU charge').

4.2 Extension charges
Extension charges for OCU will be based on daily rates.

4.2.1 Pre-planned extension (long notice)
With two weeks or more prior to the commencement of OCU (specifically an accepted OCU application), a Lessee may extend such OCU as long as the extension plus original planned duration remains within the maximum six week limit. Such extension of OCU will be promptly paid by the Lessee whereby the CBP shall receive the payment prior to the commencement of the OCU.

CBP’s failure to receive Lessee’s extension charge or Lessee’s correspondent’s matching charge (if applicable) prior to the commencement of OCU, shall result in a non-provision of OCU extension. The NA shall act at its discretion to defer or refuse the requested OCU extension.

4.2.2 Pre-planned extension (short notice) and ad-hoc extension
Where there is less than two weeks prior to the commencement of OCU (specifically an accepted OCU application) or cases whereby OCU is in-service, a Lessee may only extend OCU to a maximum of three days. Such extension charges may be received after the completed OCU duration but must be paid to the CBP within 5 calendar days after the start of the OCU extension.

The CBP's failure to receive the extension charge by the due date will incur to the Lessee late payment charges.

4.3 Cancellation charges
Cancellation charges of a minimum one week OCU charge will apply for the withdrawal from the OCU Contract by the Lessee.

Generally, for in-service OCU, the one week cancellation charge will not relieve the Lessee for charges incurred for any available period for use.

For cancellation requests;-

(i) more than 2 weeks prior to the commencement of OCU, no cancellation charges will apply.

(ii) less than 2 weeks prior to the commencement of OCU, a one week cancellation charge will apply.

(iii) of in-service OCU, a one week cancellation charge will apply,

however, in cases where the nominal cancellation charge applied would lead to an overall OCU charge greater than the total OCU charge, the cancellation charge will be limited such that the Lessee is liable for the total OCU charge.

The CBP in its capacity will make the appropriate reimbursement (no interest considerations) to the Lessee only after the end of the planned OCU duration.

4.4 Refund
Refunds from the CBP will be limited to the actual submitted payment by the Lessee. No interest will be refunded for monies held by the CBP. The CBP in its capacity will make earliest efforts to refund the Lessee after the end of the planned OCU duration.

Refund will apply to the following cases:-

4.4.1 Non-Acceptance of OCU Application and Termination of OCU Contract (prior to commencement)

The submitted payment will be refunded in total.

4.4.2 Termination by Pre-emption

The CBP will refund the Lessee based on the time when the OCU service was pre-empted. The refund will be based on daily rates with no fractional day considerations. In this case, each period of 24 continuous hours will constitute a single day of refund.

4.4.3 Interruption

If interruption of an in-service OCU occurs for longer than 24 continuous hours followed by the return of the OCU service, the Lessee shall be refunded for the duration of interruption. The refund will be based on daily rates with no fractional day considerations. Again, each period of 24 continuous hours will constitute a single day of refund.

4.4.4 Unmatched Payments

The CBP will refund the Lessee for paid monies that were awaiting a matching payment by the Lessee’s correspondent (that was not paid).

4.5 Late Payment charges
In the event that payment is not received on the due date, OCU activation will be confirmed, deferred or cancelled at the discretion of the NA, without any possible indemnification whatsoever in favour of the Lessee.

If a Lessee fails to make any payment for an OCU extension before the due date, the Lessee will remain liable for the outstanding OCU payment as well as incurring daily interest charges. Interest will be charged at a rate equal to the LIBOR for 30 day loans in US Dollars on the fifteenth day of the month (as published in the UK Financial Times) in which the payment was due or the next business day, if the fifteenth day is not a business day.

The NA will consider future OCU applications of past defaulters at its discretion.

5. Miscellaneous

5.1 Non-Liability
Under no circumstances will the SEA-ME-WE 3 Parties (inclusive of NA and CBP) be liable to the Lessee, Lessee's correspondent or any third party for any loss, damage, liability or expense sustained by reason of loss of quality, cessation, pre-emption (including priority-pre-emption), cancellation or deferment of the OCU commencement and interruption in the availability of the Physical Capacity, regardless of the cause of the disruption.

5.2 Waiver
No delay, neglect, or forbearance on the part of the SEA-ME-WE 3 Parties in enforcing any terms or conditions of this OCU Contract to the OCU Lessee shall be deemed to be a waiver or in any way prejudice the rights of the SEA-ME-WE 3 Parties under this OCU Contract.

5.3 Arbitration
Any dispute, controversy or claim arising out of or relating to this OCU Contract, shall be settled by one or more arbitrators in accordance with the rules of conciliation and arbitration of the International Chamber of Commerce, Geneva, Switzerland. The language of arbitration shall be English and the arbitration shall take place in Geneva, Switzerland. This OCU Contract is governed by the law of Canton of Geneva, Switzerland.

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