In this task, you're given a passage that represents a legal contract or clause between multiple parties. Your job is to write questions that ask the basic details corresponding to the legal contracts or clauses. Avoid questions that can be answered correctly without actually understanding the paragraph, and which might have multiple answers. The answer to each question should be unambiguous.

Q: Exhibit 10.14 MASTER SERVICES AGREEMENT This Master Services Agreement (the Agreement), dated as of the 5th day of February, 2020 (the Effective Date), is by and between Kubient Inc., with offices located at 330 7th Avenue, 10th Floor, New York, NY 10001 (Kubient) and The Associated Press, a New York not-for-profit corporation with principal place of business located at 200 Liberty Street, New York, NY 10281 (the Customer). Each of Customer and Kubient may be referred to herein individually as a Party and collectively as the Parties. WHEREAS, Customer wishes to increase the revenue derived from its traffic, content, websites, applications, podcasts, audience and database, and would like to retain Kubient to support and assist in that process as described herein; For good and valuable consideration, the receipt of which is acknowledged by each Party, the Parties agree as follows: 1. Kubient Services. The services provided by Kubient pursuant to each specific engagement by Customer (the Service or Services) shall be set forth and detailed in individual exhibits attached hereto (each an Exhibit), which shall be subject to the terms and conditions hereof and be incorporated as part of this Agreement. Kubient shall use reasonable efforts to provide to Customer the Services. Customer agrees to provide all reasonable and necessary access, support and cooperation for Kubient to provide the Services in a timely and effective manner. Nothing herein is intended nor shall be construed as creating an exclusive arrangement between Customer and Kubient. This Agreement will not restrict Customer offering Inventory via other agents or otherwise selling Inventory to any third parties. 2. Kubient License. In the event Customer shall utilize Kubient's ad serving technology as part of the Services, Kubient hereby grants to Customer a limited, royalty-free, non-exclusive, non-transferable, non-assignable, without right of sublicense, revocable license to access, participate in and use to the full extent the Auction Platform as hosted by Kubient, for the purpose of serving Inventory at Target Demand (          ). The Auction Platform will place Creative from the Target Demand with the Winning Bid Price on Google Ad Manager for such Creative to be placed on Customer's websites. 3. Kubient License Definitions. Certain capitalized terms used in this Agreement shall have meanings set forth below. (a) Auction means a real-time auction through the Auction Platform for the placement of Creatives on Customer's websites and applications. (b) Auction Platform means that technology licensed or created by Kubient on which a Registered Bidder may Bid for Inventory. (c) Bid means a price for which a Registered Bidder is willing to pay for Impressions in an Auction via the Auction Platform. (d) Creative means, as applicable: (i) any Digital ad, or Companion ad as defined in the IAB's Portfolio and Guidelines. (e) Impression(s) means the number of times a Creative is served to, and received by, a visitor viewing the Inventory as measured by Kubient. (f) Registered Bidder means a person or entity that executed an agreement with Kubient in order to use the Auction Platform to participate in Auction and to deliver Impressions in Inventory. (g) Request(s) means the data sent from Customer to Kubient that is used in the auction to determine a Bid. (h) Target Demand means the Registered Bidder that has placed a Bid for Impressions to be delivered in Inventory. (i) Inventory means advertising space on, within or associated with premium content on web site(s) or app(s) offered through the Auction Platform by Customer. (j) Winning Bid Price means the price at which the Auction Platform awards Impressions to a bidding party which shall be no less than the minimum price that Customer has agreed to accept. 4. Term and Termination. (a) The initial term of this Agreement shall be one (1) year from the Effective Date (the Initial Term). This Agreement will automatically renew for additional 1-year terms unless earlier terminated pursuant to this Agreement's express provisions (together with the Initial Term, such additional periods the Term). Neither Party may terminate this Agreement during the Initial Term except as set forth in paragraph 4(b) or any Exhibit. Either Party may terminate this Agreement for any reason following the Initial Term upon ninety (90) days written notice to the other Party. Except for termination for material breach as detailed in paragraph 4(b), Kubient shall be entitled to all fees generated during the termination period regardless of which Party terminates the Agreement, (b) Either Party may terminate this Agreement if the other Party commits a material breach of the Agreement and upon thirty (30) days written notice to the other Party, such other Party hasn't cured the breach within such thirty (30) days. Either Party may terminate the Agreement immediately if the other party (i) becomes insolvent or makes a general assignment for the benefit of creditors; (ii) suffers or permits the appointment of a conservator or receiver for its business or assets or any similar action by a governmental entity for the purpose of assuming operation or control of the Party due to the financial condition of the Party; (iii) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign and such proceeding or action has not been dismissed within a sixty (60) period; or (iv) has wound up or liquidated its business, voluntarily or otherwise.





(c) Upon termination of the Agreement: (i) Kubient will cease providing the Services; (ii) the license granted under section 3 shall be revoked, (iii) Customer will promptly cease use of the Services and the Auction Platform; (iv) and each Party will return or destroy any of the other Party's Confidential Information then in its possession. 5. Fees and Payment. The Parties agree to share any revenue generated as a result of this Agreement, or Customer's use of the Services or the Auction Platform, as set forth and detailed in each applicable Exhibit. Unless specified otherwise in an Exhibit, Kubient shall be responsible for contracting with all advertisers, agencies, media buyers, and/or sponsors (collectively Advertisers) on Customer's behalf, including Advertisers with whom Customer has existing relationships. Pursuant to the doctrine of sequential liability, payment from Kubient to Customer shall be made within seven (7) days from Kubient's receipt of payment, regardless of when Customer submits an invoice. Customer acknowledges and agrees that Kubient shall proceed with recovery of the amounts due on a best effort basis but will not initiate any legal action against a delinquent party without the express written consent and support of Customer. Except of taxes associated with Kubient's income, Customer shall be responsible for paying all applicable sales, use or other taxes, duties, or tariffs applicable to its use of the Services. 6. Use of Service. (a) Customer will comply with all international, federal, state and local laws, rules, and regulations of any governmental or regulating authority (Law) that are applicable to its business and use of the Service. Customer agrees that it will not transfer or (unless expressly and specifically approved by Kubient in advance and in writing) allow third-party access to the Service. Customer will not modify, translate, alter, tamper with, repair, or otherwise create derivative works of any software included in any Service; reverse engineer, disassemble, or decompile any software or Service or apply any other process or procedure to derive source code of any software included in any Service; or resell, transfer, assign, or use as a service bureau any Service. Customer will ensure that its stories, articles, polls, videos, pictures, photographs, images, broadcasts, and any other type of content (collectively the Content), and each of its websites, devices, applications, podcasts, ads, emails, databases or any other types of mediums for which the Service is engaged (collectively the Properties) contains or is linked to a privacy policy in accordance with applicable Law. Customer shall be responsible and solely liable for all the Content (including without limitation all intellectual property rights therein) and the Properties. 7. Limitation of Liability. (a) EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION, OR LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES, WHETHER OR NOT CAUSED BY THE OTHER PARTY'S EMPLOYEES OR REPRESENTATIVES„ WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF THE OTHER PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. Arbitration. Each Party agrees and does waive trial by jury in any action, proceeding or counterclaim brought against the other Party for any matter whatsoever arising out of or in any way connected with this Agreement. No action, suit or proceeding shall be brought against a Party more than one year after the date of termination this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof





9. Representations, Warranties, and Covenants. (a) Each Party represents, warrants and covenants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to. (b) Kubient represents, warrants and covenants that: (i) the Service and any deliverables provided hereunder by Kubient do not and shall not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other rights of any third party; (ii) the Service will perform in all material respects to industry standards; (iii) the collection, maintenance, management and storage of visitor information (data), to the extent collected, directed by, maintained or stored by Kubient, as well as the performance of the Auction Platform, is and shall be in a secure manner using best practices of security technology and best practices to protect against loss, misuse or alteration of data and Kubient shall use measures in accordance with industry standards to ensure that all databases shall be accessible only by certain authorized personnel of Kubient or Customer; (iv) it will ensure that the product and service provided by Kubient shall be free of any viruses, Trojan Horses, worms, time bombs, trap doors, back doors, Easter eggs, cancelbots, or other computer programming routines that will damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; (v) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable Laws or regulations; (vi) any services provided by it shall comply with the terms of this Agreement and shall be free from errors that materially affect their utility; (vii) it owns or controls the rights granted or licensed to Customer herein; (viii) it is the rightful owner or licensee of all intellectual property rights to the Service, the Auction Platform and products delivered hereunder; (ix) it is now and throughout the Term shall comply with all applicable Laws in connection with the operation of its business and the performance of its obligations hereunder or the provision of the Service, except to the extent that such failure would not, in the aggregate, reasonably be expected to have a material adverse effect on Customer's business, (x) it shall not place advertising for guns, tobacco products, pornography, illegal products and any products identified by the IAB as excluded categories for advertising and (xi) it will ensure that all Target Bidders have agreed to provide representations and warranties with respect to the Creative in accordance with industry standards, including, without limitation, that all Creative is supported by competent and reliable prior substantiation in accordance with Law and complies with applicable Law and is not defamatory, libelous, slanderous or otherwise unlawful. (c) Customer represents and warrants that: (i) it is the sole and rightful owner of all the Content and Properties, or has the necessary rights to the Content and Properties to meet its obligations hereunder; (ii) the Content and Properties do not and shall not infringe, misappropriate or violate any patent, copyright, trademark, trade secret, publicity, privacy or other intellectual property or other rights of any third party; (iii) the collection, maintenance, management and storage of visitor information (data), to the extent collected, maintained or stored by Customer or a third-party on Customer's behalf, is in a secure manner using best practices of security technology and best practices to protect against loss, misuse or alteration of data and Customer shall use measures in accordance with industry standards to ensure that all databases shall be accessible only by certain authorized personnel of Kubient or Customer in accordance with Customer's privacy policy and applicable Law; and (iv) the execution and delivery of the Agreement and the performance of its obligations hereunder do not and will not violate any applicable Law. 10. Indemnification. (a) Kubient agrees to indemnify, defend, and hold harmless Customer and its officers, directors, managers, members, agents, and employees from all third-party allegations, claims, actions, losses, expenses, damages, costs (including, without limitation, reasonable attorneys' fees) or liabilities (Claims) arising out of or in connection with: (i) the Services; (ii) the Auction Platform; (iii) to the best of its knowledge the Creative placed onto Customer's platforms or websites by the Auction Platform; (iv) Kubient's breach of any representation or warranty under this Agreement or (v) the acts or omissions of Kubient or a third party hired by, employed, retained or under Kubient control with respect to Kubient's obligations hereunder. (b) Customer agrees to indemnify, defend, and hold harmless Kubient and its owners, shareholders, officers, directors, managers, agents, and employees from all third-party Claims arising out of or in connection with (i) Customer's unauthorized or inappropriate use of the Services, (ii) Customer's unauthorized or inappropriate use of the Auction Platform, (iii) Customer's breach of any representation or warranty under this Agreement, or (iv) the Content or Properties, including any allegation or claim that the Content or Properties violate or infringe on an y third party rig hts, or (v) the acts or omissions of Customer or a third party hired by, employed, retained or under Customer's control. 11. Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (i) the party seeking indemnification shall provide prompt written notice of the claim to the indemnifying party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations ; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party's cost and expense. 12. Confidentiality. Confidential Information means any tangible and intangible non-public information in any form (including written information, oral statements and electronically stored data) which a party discloses (the Discloser) to the other party (the Recipient) including, without limitation, information relating to trade secrets, systems, know-how, products, processes (including manufacturing processes), inventions, computer software programs, marketing or sales techniques, financial condition, costs, business interests, initiatives, objectives, plans, strategies, customers, suppliers, lenders, underwriters, or employees, that is marked as confidential or identified at the time of disclosure as being confidential or is otherwise disclosed under circumstances that would lead a reasonable person to conclude that such information is confidential, excluding information that: (a) was in Recipient's possession before receipt from the Discloser pursuant this Agreement; (b) is in or enters the public domain without a breach of this Agreement; (c) is rightfully received by Recipient from a third party who was not known by Recipient to be legally or contractually restricted from disclosing such information; or (d) is independently developed by Recipient without use of or reference to the Discloser's Confidential Information. Recipient will protect the Confidential Information, for one (1) year from the date of disclosure, by using at least the same degree of care as it uses to protect its own Confidential Information, but no less than a reasonable degree of care, to prevent unauthorized use, disclosure or publication. Notwithstanding the foregoing, if Recipient is required by applicable Law or a valid legal order to disclose any Confidential Information, Recipient shall, before such disclosure, notify Discloser of such requirements, if legally permissible and reasonably practicable, so that Discloser may seek a protective order or other remedy, and Recipient shall reasonably assist Discloser therewith (at Discloser's cost). If Recipient remains legally compelled to make such disclosure, it shall only disclose that portion of the Confidential Information Recipient is required to disclose. Without limiting the foregoing, Recipient: (x) will not use, disclose, make available or reproduce the Confidential Information (or permit others to do so) except as expressly authorized in this Agreement; (y) will not disclose any such Confidential Information to anyone except employees and directors of Recipient to whom disclosure is necessary for the performance of the Agreement; and (z) will appropriately notify such employees and directors that the disclosure is made in confidence and will be kept in confidence in accordance with this Agreement. If Recipient becomes aware of any loss or unauthorized disclosure of Confidential Information, Recipient will promptly notify Discloser of such and use reasonable efforts to retrieve such Confidential Information.





13. Disclaimer. Except as expressly set forth herein, the Services are provided on an as is, where is, and as available basis, and, to the maximum extent permitted by Law, Kubient disclaims, and Customer hereby waives, all representations and warranties, express or implied, arising by operation of Law or otherwise, except for the representations and warranties set forth in this Agreement, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, as well as any warranties arising from a course of dealing, usage or trade practice. Kubient makes no representation or warranty and expressly disclaims, and Customer understands and acknowledges, that there is no guarantee that any minimum level of revenue or profit will be generated by either Party as a result of the Services or this Agreement. 14. General Provisions. (a) This Agreement is governed in all respects by the laws of the State of Delaware without giving effect to its conflict of laws principles. Each Party hereby irrevocably submits for all disputes to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York. (b) Each Party's names, trademarks and logos are the exclusive property of said respective Party, and neither Party will acquire any proprietary rights therein by reason of this Agreement or any other agreement. Neither Party may issue any publicity release or marketing materials identifying the other Party without the prior express written approval of such other Party, provided however, the Parties agree to issue a joint press release within ninety (90) days of the Effective Dave announcing the Agreement. (c) The relationship of the Parties is that of independent contractors, and nothing herein is intended, nor should be construed, to create a partnership, agency, joint venture or employment relationship. No act or statement of either Party will operate to bind the other and neither Party will hold itself out or have any authority as an agent of the other for any purposes whatsoever. (d) If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to the Agreement or in breach hereof, the prevailing party in any final judgment or arbitration award shall be entitled to recover its reasonable expenses, including all court costs, arbitration fees and reasonable attorney's fees. (e) All notices provided pursuant to this Agreement will be in writing and will be deemed given (i) if by personal delivery, upon receipt thereof; (ii) if mailed five 5 days after deposit in the US mail, postage prepaid, certified mail return receipt requested; or (iii) if sent via overnight courier, upon receipt. All notices will be sent to the person who has signed this Agreement (at the address set forth above) or to such other person or address as either party may specify in writing. (f) If any provision of this Agreement is unenforceable, illegal or invalid under any applicable Law or court of competent jurisdiction, then such unenforceability or invalidity will not render the Agreement unenforceable or invalid. In such event, such provision will be deemed restated in accordance with applicable Law to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. Provisions that should reasonably be considered to survive termination of the Agreement will survive and be enforceable after such termination or expiration, including without limitation provisions relating to confidentiality, proprietary rights, indemnification, limitations of liability, effects of termination, and governing Law. The delay or failure of either Party to exercise any right or power provided in this Agreement or to require performance by the other Party of any provision of this Agreement will not impair such right or power, or be deemed a waiver thereof. A waiver by either Party of any covenants to be performed by the other or any breach thereof will not be taken or held to be a waiver of any succeeding breach thereof or of any other covenant contained in this Agreement or under any agreement. (g) Neither Party will be liable under this Agreement by reason of any damages, failure or delays in the performance of its obligations under such Agreement (except for the payment of money) on account of any cause beyond the reasonable control of such Party, such as fire, explosion, power failures, pest damage, lightning or power surges, strikes or labor disputes, water, war, civil disturbances, terrorism, acts of civil or military authorities, inability to secure raw materials, transportation facilities, fuel or energy shortages, performance or availability of communications services or networks and network facilities failures of any suppliers or service providers, or other causes beyond the Party's reasonable control. (h) Neither Party may assign (voluntarily, by operation of law, or otherwise) this Agreement or any rights or obligations under this Agreement without the other Party's prior written consent, which shall not be unreasonably withheld, provided however, that either Party may assign this Agreement without approval or consent to any affiliate or purchaser of all or substantially all of said Party's assets related to the subject matter of this Agreement or to any successor by way of merger, stock sale, consolidation or similar transaction. Any attempted assignment other than in accordance herewith will be void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns. The Agreement completely and exclusively states the agreement of the Parties regarding its subject matter. This Agreement supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. (i) This Agreement is intended for the sole and exclusive benefit of the Parties hereto, is not intended to confer any rights or benefits on any third party, and only the Parties may enforce such Agreement. This Agreement shall be binding on both Parties when signed on behalf of each Party, and may be signed in one or more counterparts, each of which shall be deemed to be an original and both of which when taken together will constitute one and the same agreement. Fax or electronically scanned copies of such executed documents may be used in lieu of the originals for any purpose.





IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the dates written below. Kubient Signature: /s/ Paul Roberts By: Paul Roberts Its: CFO Date: 2-6-2020 Customer Signature: /s/ Paul Caluori By: Paul Caluori Its: VP, Global Products Date: 02-05-2020

A: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
****
Q: Exhibit 10.34

*** Text Omitted and Filed Separately  Confidential Treatment Requested Under 17 C.F.R. §§ 200.80(b)(4)  and 203.406

DEVELOPMENT AGREEMENT

This Development Agreement (Development Agreement) is entered into on April 15 , 2010 (EffectiveDate) by and between Cargill,  Incorporated through its Bio Technology Development Center, having its principal place of business at 15407 McGinty Road West, Wayzata,  Minnesota 55391 USA (Cargill) and Bioamber S.A.S., having a place of business at Route de Bazancourt, F-51110, Pomacle France (Bioamber).  Bioamber and Cargill shall be referred to individually as Party and collectively as Parties, as required by text.

Background





Cargill and Bioamber mutually agree as follows:







   Cargill Confidential   - 1 -   * Confidential treatment requested

  A. Cargill has developed a yeast strain designated CB1 (CB1) for fermenting dextrose and/or mixed sugar streams and related research  tools for modifying CB1,which are protected by Licensed Patents (as defined in Section 2.5 below).

  B. Bioamber desires to engage Cargill to further develop or modify CB1 with the goal of fermenting dextrose and/or mixed sugar streams to  produce succinic acid and salts thereof.

  C. The Parties desire to grant each other certain rights to use the further developed or modified CB1 as well as other technology that is  developed in the course of the work as provided in this Development Agreement for research purposes only.

1. Scope of Work Plan  1.1 Cargill agrees to perform the services to develop or modify CB1 to produce succinic acid and salts thereof using dextrose (defined as  glucose) and/or sucrose as the fermentation feedstock (Work Plan). The Work Plan is more fully described in Exhibit A, which is hereby  incorporated by reference into this Development Agreement. CB1 that has been further developed or modified (or the like) under the Work  Plan shall be referred to as Modified CB1. Any changes to the Work Plan must be in writing and signed by both Cargill and Bioamber and  may be subject to incremental fees depending on resource requirements.

1.2 In agreeing to perform the Work Plan, Cargill represents and warrants that:

  1.2.1 Cargill has the capability, experience, and means necessary to perform the Work Plan, and the Work Plan will be performed using  personnel, equipment, and material qualified and suitable to perform the Work Plan requested;

th

















   Cargill Confidential   - 2 -   * Confidential treatment requested

  1.2.2 Cargill will provide properly trained and informed personnel, and Cargill will be solely responsible for the negligent acts, errors and  omissions of its employees, subcontractors, and agents and for any other person performing services under this Development  Agreement at the direct request of Cargill;

  1.2.3 Cargill will perform the Work Plan in a workmanlike manner with reasonable skill and care ordinarily exercised by members of the  profession practicing under similar conditions and in accordance with accepted industry practices and professional guidelines;

  1.2.4 Subject to Section 13.1, Cargill has in effect and will maintain in effect all permits, licenses and other authorizations necessary to  perform the Work Plan; and



1.2.5 No other party has rights to its services as described in the Work Plan, and that a work assignment from any third party shall not be  accepted, or work by Cargill aloneshall not be conducted, to develop CB1 or other microorganisms that will be used to (a) directly  produce succinic acid and salts thereof, or (b) indirectly produce succinic acid and salts thereof (for example, Cargill may develop  microorganisms to produce precursors of succinic acid, such as fumaric acid and malic acid, so long as such precursors are not  converted to succinic acid, such as by chemical modification), for the Term (as defined in Section 10.1) of this Development  Agreement. For purposes of clarity, and as examples, Cargill may sell dextrose as fermentation feedstock to third parties, who may  use such dextrose to produce succinic acid; also, Cargill may modify starches to make succinic acid starch derivatives.

2. Fees and Milestones   2.1 Bioamber shall pay Cargill Two Hundred Fifty Thousand U.S. Dollars ($250,000.00) within thirty (30) days of the execution of this  Development Agreement.

2.2 In addition to the payment in Section 2.1, Bioamber shall pay Cargill a total of [***] U.S. Dollars ($[***] per year per full-time equivalent  (FTE) person to perform the Work Plan, and Cargill will make available up to [***] FTE persons per year to perform the work as outlined in  the Work Plan. Such total is subject to change based on an annual review of the needs and requirements of the Work Plan. The actual  number of FTEs assigned at any given time will be a function of the Work Plan and will be subject to agreement amongst the Parties. In  addition, Bioamber will pay for reasonable expenses incurred by Cargill, including travel. Cargill shall cover ordinary and customary [***].  Cargill shall submit to Bioamber a monthly invoice for costs owed by Bioamber, accompanied by a report summarizing Cargill's activities in  relation to actual hours worked and expenses incurred. Bioamber will pay Cargill's costs within thirty (30) days of receipt of invoice and  supporting documentation. Bioamber shall have the right to audit Cargill time sheets from time to time. Such audit shall occur once per year  during reasonable business hours by an independent third party agreed to by both parties, who shall be under obligations of  confidentiality.













   Cargill Confidential   - 3 -   * Confidential treatment requested

2.3 Bioamber shall also pay Cargill within thirty (30) days of achieving each of the milestones summarized below and more fully described in the  Work Plan found in Exhibit A. For purposes of clarity, payment is triggered [***]. Further, each of the Milestones and Target Dates may be  changed according to the needs of the Work Plan and upon written agreement by the parties.

Milestone   Target Date   Payment  Milestone 1: Proof of Concept   12 months after Effective Date   US $250,000.00 Milestone 2: CB1 Strain Development   30 months after Effective Date   US $300,000.00 Milestone 3: CB1 Strain Optimization   42 months after Effective Date   US $500,000.00

2.4 Missed Milestones.



2.4.1 In the event Cargill does not achieve a given Milestone provided in Section 2.3 by the Target Date listed in Section 2.3 or modified  Milestone and modified Target Date as agreed to by the Parties, and subsequently achieves such milestone as per the criteria  described in Exhibit A, the payment for such missed milestone shall be due [***] and the amount due shall be [***] for every [***]  beyond the Target Date. The Target Date for subsequent Milestones will be adjusted to reflect the date on which the Milestone was  actually achieved. If a subsequent Milestone is achieved by the original Target Date listed in Section 2.3, Bioamber will pay Cargill  the amount [***]. For purposes of clarity and as examples, if Milestones 1 and 2 were not delivered by the Target Dates, but  Milestone 3 is delivered by or before the Target Date, then the total payments due to Cargill at that time would be [***] (a total  payment of $[***]). Another example is if [***], the payment due at that time would be a total of $[***].



2.4.2 In the event Cargill does not achieve a given Milestone provided in Section 2.3 by the Target Date listed in Section 2.3 or modified  Milestone and modified Target Date as agreed to by the Parties, and Bioamber decides to commercialize Modified CB1, any  outstanding milestone payments shall immediately become due such that the total payment due Cargill under this Development  Agreement equals One Million Fifty Thousand U.S. Dollars (US $1,050,000.00).









   Cargill Confidential   - 4 -   * Confidential treatment requested

  2.4.3 Provided that Cargill has respected its undertakings set out in Section 1.2 of this Development Agreement, no other damages shall  accrue to Cargill for not achieving a given Milestone other than provided in Sections 2.4.1, 2.4.2, and 2.5.

2.5 Option to Research License. In the event Cargill (i) is unable to achieve a given milestone described in Section 2.3 by the Target Date, or (ii)  terminates this Agreement pursuant to Section 10.2, Bioamber shall have the option to obtain a license during the term of this Development  Agreement to the patent applications and patents listed in Exhibit B (including any continuations, continued prosecutions, continuations- in-part, reissues, reexaminations, divisions or substitutions thereof) (collectively Licensed Patents), the tool kit listed in Exhibit C  (Licensed Tool Kit), and Cargill Improvements if any (as defined in Section 5.2 below), for research use only and for additional monetary  consideration (Research License). Except for financial terms paid by third parties for [***], the Research License shall be offered to  Bioamber at [***]. Such research use shall be for the development and optimization of CB1 for the production of succinic acid and salts  thereof using dextrose or sucrose as the fermentation feedstock. The Research License shall be provided to Bioamber only, with no rights  to sublicense and with no have made rights. Notwithstanding the preceding, Bioamber will be permitted to outsource development work  as outlined in the Work Plan and according to the Research License to third parties that have been approved by Cargill, and such approval  shall not be unreasonably withheld. In considering whether or not to outsource such development work to third parties, the Parties  recognize that it is in their mutual interest to protect CB1, Modified CB1, Cargill Confidential Information (as defined in Section 4.1), and  Know-How and Licensed Patents (as those terms are defined under the Commercial License Agreement) and, therefore, the Parties shall  undertake joint evaluations of third parties who have been identified by Bioamber to perform such development work, including, for  example and not by limitation, a risk assessment of the geography in which such development work will occur, and whether or not such  third parties have similar guiding principles as Cargill (a copy of Cargill's Guiding Principles and Compliance Policy on Intellectual Property  is attached as Exhibit F). Such development work shall not be conducted by such third parties in circumstances where Cargill's intellectual  property is at an unacceptable risk as determined by Cargill based on the joint evaluations of such third parties. The terms and conditions  of such Research License shall be negotiated between the Parties and shall include the terms described in this Section 2.5 and terms  addressing ownership and rights to use of any intellectual property developed. Further, this Development Agreement shall serve as the  framework for the Research License.

2.6 Technology Transfer. In the event Milestone 3 is achieved, Cargill will provide up to [***] to assist in a successful transfer of the Modified  CB1 technology to Bioamber in order to allow subsequent scale-up at the same FTE rate set forth in Section 2.2. For clarity, [***] per FTE  per year equals US$[***] for this technology transfer).













   Cargill Confidential   - 5 -   * Confidential treatment requested

2.7 Scale-Up. Following the successful technology transfer, upon request by Bioamber and subject to Cargill's availability of appropriate  resources, Cargill will enter at its sole discretion into a services agreement with Bioamber to assist in the fermentation scale-up of using  Modified CB1 obtained under Milestones 2 and 3 for producing succinic acid and salts thereof at a single Bioamber facility or a facility  designated by Bioamber. Cargill shall invoice Bioamber [***] U.S. Dollars (US$[***]) per man-day provided, not inclusive of taxes or other  governmental fees, and further adjusted for inflation at the time it goes into effect. Cargill shall have no obligation to perform scale-up work  at Cargill facilities.

3. Alternative Feedstock. Bioamber also desires the right to further develop CB1 to utilize cellulosic biomass as the fermentation feedstock.  Cargill hereby grants Bioamber the option to modify or convert the Work Plan to include the development or modification of CB1 capable of  fermenting such cellulosic feedstock (Modified Work Plan). If such option is exercised, (a) the terms and conditions of this Development  Agreement shall apply to the Modified Work Plan except (i) new, additional up-front and milestone payments shall apply as provided  below, and (ii) any development work performed under the Modified Work Plan will be at a FTE rate which will be equivalent to the FTE rate  provided in Section 2.2 above and further adjusted for inflation at the time it goes into effect; and (b) the commercial license attached as  Exhibit D shall be expanded to include the resulting strain developed out of the Modified Work Plan with no additional change in the  financial terms. Additionally, the additional up-front fee [***].

Milestone using Alternative Feedstock   Target  Date   Payment  Up-front Payment   TBD   US $[***] Milestone 1: Proof of Concept   TBD   US $[***] Milestone 2: CB1 Strain Development   TBD   US $[***] Milestone 3: CB1 Strain Optimization   TBD   US $[***]

4. Confidentiality. To carry out the Work Plan, Cargill may receive from, and provide to, Bioamber certain Confidential Information, as defined  below. Such Confidential Information will be disclosed by one Party (the Disclosing Party) to the other Party (the Receiving Party) on  the following terms and conditions:

4.1 Confidential Information means all business, technical, and financial information related to the Work Plan, the terms and discussions  relating to the Term Sheet executed by the parties on December 3, 2009 and December 4, 2009, and to any aspect of the business of each  Party that is material to the Work Plan, including, without limitation, Licensed Tool Kit, products, product compositions, raw materials,  specifications, formulae, equipment, business plans and strategies, customer lists, supplier lists, know-how, samples, drawings, pricing  informationand other financial information, inventions, ideas, research information, packaging, manufacturing processes, and other  information, or its potential use, that is owned by or in possession of either Party. For purposes of clarity, the parties shall not disclose to  each other any Confidential Information that is not material to the Work Plan, such as, by way of example and without limitation, processes  and other information relating to post-fermentation activities. Confidential Information shall not include information that: (a) is in the public  domain prior to disclosure by Disclosing Party; (b) becomes part of the public domain, by publication or otherwise, through no  unauthorized act or omission by the Receiving Party; (c) is lawfully in the Receiving Party's possession prior to disclosure by the  Disclosing Party; or (d) is independently developed by an employee(s) of the Receiving Party with no access to the disclosed Confidential  Information.











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4.2 The Receiving Party agrees to take and maintain proper and appropriate steps to protect Confidential Information of the Disclosing Party.  The Receiving Party agrees to disclose the Confidential Information of the Disclosing Party only to employees or agents of the Receiving  Party who are directly involved with the Work Plan contemplated by this Development Agreement, and even then only to such extent as is  necessary and essential to perform the Work Plan. The Receiving Party agrees to inform such employees and agents of the confidential  nature of the information disclosed hereunder and to cause all such employees and agents to abide by the terms of this Development  Agreement.

4.3 The Receiving Party shall not disclose the Disclosing Party's Confidential Information to any unauthorized party without the Disclosing  Party's prior express written consent or unless required by court order or order of a similar governmental entity. If a Party is required by  court order or order of a similar governmental entity to disclose the other's Confidential Information, they shall give the other Party prompt  notice of such requirement so that an appropriate protective order or other relief may be sought.

4.4 The Receiving Party will use Confidential Information only in connection with the Work Plan. Both Parties have reserved all rights to their  respective Confidential Information not expressly granted herein. All documents and/or tangible materials containing or comprising  Confidential Information of the Disclosing Party will remain the property of the Disclosing Party. Upon the request of the Disclosing Party,  the Receiving Party will destroy all Confidential Information of the Disclosing Party and any documents prepared by the Receiving Party  using Confidential Information of the Disclosing Party and the Receiving Party agrees to provide confirmation of such destruction in  writing. The Receiving Party may, however, keep one copy of any such document in the files of its legal department or outside counsel for  record purposes only.

4.5 Notwithstanding any other provision of this Development Agreement, each Receiving Party acknowledges that a breach of confidentiality  and use as provided in this Section may result in irreparable harm and damages to the Disclosing Party in an amount difficult to ascertain  and that cannot be adequately compensated by a monetary award. Accordingly, in addition to any other relief to which the Disclosing  Party may be entitled at law or in equity, the Disclosing Party shall be entitled to seek a temporary and/or permanent injunctive relief from  any breach or threatened breach by the Receiving Party.

















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4.6 The obligations imposed by this section, including but not limited to non-disclosure and non-use, however, will endure so long as the  Confidential Information of the Disclosing Party does not become part of the public domain.

4.7 The existence of and the terms of this Development Agreement, including its Exhibits, are confidential and are not to be disclosed without  the prior written approval of Cargill.

4.8 Neither Party may make any public announcement concerning this Development Agreement, its subject matter, and the activities and  actions it contemplates without the other Party's express written consent.  4.9 This Section 4 supercedes and replaces the Mutual Confidentiality Agreement between the Parties, which was effective July 17, 2009. All  Confidential Information that was subject to that Mutual Confidentiality Agreement is hereby made subject to the terms and conditions of  this Section 4.

5. Intellectual Property  5.1 Each party shall retain ownership of all intellectual property that it owned prior to the Effective Date.

5.2 Improvements. Any invention or discovery relating to the Work Plan, in whole or in part, that is conceived during the term of this  Development Agreement shall be an Improvement. The scope for Improvements will be limited to the CB1 strain itself and the [***] (the  Field), but shall exclude [***]. Bioamber will own any Improvement in the field of succinic acid and salts thereof and such Improvement  shall be designated Bioamber Improvements. Cargill will own any Improvement in all fields other than the field of succinic acid and salts  thereof, subject to the rights provided in Section 5.2.1 below, and such Improvement shall be designated Cargill Improvements. In the  event it is not clear as to ownership of any Improvement as described in this Section 5.2, in other words, if it is not clear whether an  invention or discovery is either a Bioamber Improvement or a Cargill Improvement, such Improvement shall be [***] and such Improvement  shall be designated Joint Improvements. For purposes of clarity, as examples, Cargill Improvements are those inventions relating to  fumaric acid and malic acid. Additionally, where an Improvement has applications both in the Field and outside the Field, then such  Improvement, as it applies to the Field, shall be a Bioamber Improvement and, as it applies outside the Field, such Improvement shall be a  Cargill Improvement.



5.2.1 Cargill hereby grants Bioamber, and Bioamber hereby accepts, an exclusive, royalty-free license to Cargill Improvements and Joint  Improvements for use in the Field during the term of this Development Agreement with a reservation of right for Cargill to practice  such Cargill Improvements and Joint Improvements for use in the field of succinic acid and salts thereof during the term of this  Development Agreement. Such use shall be for research purposes only with no rights to sublicense and with no have made  rights. Cargill shall also grant a commercial license to Bioamber for Cargill Improvements and Joint Improvements under the terms  and conditions of Exhibit D.











   Cargill Confidential   - 8 -   * Confidential treatment requested

  5.2.2 Bioamber hereby grants Cargill, and Cargill hereby accepts, an exclusive, worldwide, royalty-free license with an unlimited right to  sublicense under and to Bioamber Improvements for use outside the Field during the term of this Development Agreement. Such  use shall be for research purposes only.



5.2.3 Cargill shall have the first option to prepare, file, prosecute, and maintain patent applications and issued/granted patents on  Bioamber Improvements and Joint Improvements, which option may be waived in whole or in part. Cargill shall bear all costs  incurred in connection with such preparation, filing, prosecution, and maintenance of U.S. and foreign application(s) and  issued/granted patents directed to Bioamber Improvements and Joint Improvements. Cargill shall provide Bioamber a copy of any  proposed patent application covering Bioamber Improvements and Joint Improvements in advance of the submission of the  proposed patent application to any patent office. However, Cargill shall be entitled to file provisional patent applications without  seeking Bioamber's approval. If Cargill waives its option, Bioamber shall have the option to prepare, file, prosecute, and maintain  patent applications and issued patents on Bioamber Improvements and Joint Improvements. Cargill shall provide, when requested  by Bioamber, all information in its possession, or true copies thereof, pertaining to Bioamber Improvements and Joint Improvements  which may be necessary or useful in the preparation, filing, and prosecution of patent applications covering the Bioamber  Improvements and Joint Improvements. Such information shall be treated as Confidential Information.



5.2.4 If Cargill waives its option to prepare and prosecute a patent application in accordance with Section 5.2.3 and elects not to file such  a patent application or elects to allow any such patent application or issued/granted patent to become abandoned or lapse, Cargill  shall give Bioamber notice of such election promptly and at least two (2) months prior to the first date that action must be taken to  avoid such abandonment or lapse. Bioamber shall have the right to take over at its sole expense the filing, prosecution or  maintenance of any such patent application and Bioamber shall keep Cargill informed of Bioamber's filing, prosecution, and  maintenance activities. All out-of-pocket expenses of Cargill shall be reimbursed by Bioamber. Bioamber shall have no liability to  Cargill for Bioamber's acts or failure to act with respect to such patent application or issued/granted patent.



5.2.5 Cargill shall have the sole power to bring and/or settle suits for infringement of any and all patent applications and/or patents on  Improvements, regardless of ownership; provided, however, if required by law, Cargill shall join Bioamber, and Bioamber shall be  joined, in such suits. Cargill shall control any such suits and shall bear all expenses related to any such suits. Bioamber shall  provide any assistance reasonably requested in prosecuting and enforcing any and all patent applications and/or patents on  Improvements. In the event Cargill elects not to initiate and prosecute suits for infringement of any patent application/and or patent  onImprovement within the Field, then with sixty (60) days prior written notice to Cargill, Bioamber shall be entitled to initiate and  prosecute such suits. For purposes of clarity, within such sixty (60) day period, Cargill shall be entitled to initiate and prosecute  such suits.

















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  5.2.6 Cargill shall have the sole power to settle suits for infringement of the Licensed Patents. Cargill will in good faith consider  enforcement requests from Bioamber.



5.2.7 Improvements are to be considered Confidential Information of the owning Party subject to the terms and conditions of Section 4,  provided that the Party authorized hereunder to file and prosecute patent applications for an Improvement may make disclosure of  that Improvement to outside patent counsel and to relevant patent offices as reasonably necessary for filing and prosecution of a  patent application.

5.3 In consideration of the ownership rights granted to Bioamber under this Section 5, and the licenses granted to Bioamber under this Section  5 and the Commercial License attached as Exhibit D, Bioamber agrees to the payment terms and its other obligations contained in the  attached Commercial License.

6. WRF Patents. Washington Research Foundation (WRF) is the owner of several patents relating to the expression of polypeptides in yeast  (WRF Patents). Prior to transferring CB1 or any other yeast strain to Bioamber, Bioamber shall provide to Cargill a letter from WRF  stating that Bioamber has a license to the WRF Patents (Bioamber-WRF License). Upon receipt of such letter, Cargill will transfer CB1 to  Bioamber for Bioamber's use of the strain commensurate with and in accordance with the Bioamber-WRF License. Cargill shall have no  liability to Bioamber for Bioamber's acts or failure to act with respect to the WRF Patents.  7. Warranties. Except as provided in Section 1.2 of this Development Agreement, Cargill makes no representations or warranties, express or  implied, with respect to the services provided under this Development Agreement and with respect to the subject matter of this  Development Agreement. The services are provided as is and Bioamber acknowledges that it bears all responsibility and accountability  for evaluating, approving, and implementing any of results resulting from this Development Agreement.

8. Indemnification. Bioamber and Cargill agree to waive any and all claims against each other for consequential, punitive, incidental, special, or  other forms of exemplary losses whether arising in contract, warranty, tort (including negligence), strict liability, or otherwise, including  any losses relating to lost use, lost profits, lost business, damage to reputation, or lost or diminished financing unless such claims are  based on a Party's gross negligence or willful misconduct.  9. Notices. All notices or other communication must be in writing and delivered by (a) personal delivery, (b) reputable overnight delivery  service, or (c) facsimile or e-mail, confirmed under clause (a) or clause (b), and addressed in each case as set forth below:















   Cargill Confidential   - 10 -   * Confidential treatment requested

If to Cargill:   If to Bioamber:

Cargill, Incorporated   Bioamber S.A.S. Bio Technology Development Center   1250 Rene-Levesque West 15285 Minnetonka Blvd.   Suite 4110 Minnetonka, Minnesota 55345  USA   Montreal, Quebec  Canada H3B 4W8  Fax: 952-742-0540   Fax: 514-844-1414 Attention: Pirkko Suominen   Attention: Laurent Bernier

With copy to:  Cargill, Incorporated  Law Department / Mailstop 24  15407 McGinty Road West  Wayzata, Minnesota 55391 USA  Fax: 952-742-6349  Attention: Bio TDC IP Lawyer

With copy to:  Boivin Desbiens Senécal, g.p.  2000-2000 McGill College  Suite 2000  Montreal, QC, Canada  H3A 3H3  Fax: 514-844-5836  Attention: Thomas Desbiens

10. Term and Termination.

10.1 This Development Agreement will begin on the Effective Date and continue for four (4) years unless earlier terminated pursuant to Section  10.2, or unless the parties extend the term by mutual written Development Agreement (Term).  10.2 Either Party may terminate this Development Agreement by giving written notice to the other Party, (a)in the event the other Party's  bankruptcy, insolvency, or the filing of a petition therefore; and (b) the other Party materially defaults in the performance of its obligations  hereunder. This Development Agreement shall also terminate upon mutual written agreement by the Parties. Further, in the event there is a  dispute as to whether or not Cargill has missed a certain Milestone, then the Target Date for that Milestone shall be tolled until the Parties,  acting in good faith, have settled such dispute in writing between themselves or through an independent expert.

11. Independent Contractor. Nothing in this Development Agreement is to be construed to deem the relationship between the parties to be one  of master/servant, principal/agent, or employer/employee. To the contrary, the relationship of Cargill to Bioamber is that of independent  contractor, and Cargill will have no authority to (i) make any binding decision for, or on behalf of, Bioamber or (ii) commit Bioamber to any  contract, obligation, debt, or other liability. None of Cargill's employees will be deemed to be employees of Bioamber.  12. Publicity. Any public statements related to work performed under this Development Agreement, including public statements related to the  existence of this Development Agreement itself, will only be made after the prior written consent of both Parties concerning timing, content,  and audience.























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13. Miscellaneous.

13.1 Third Party Patents. In addition to the WRF Patents as described more fully in Section 6, the CB1 Team of the Bio Technology  Development Center of Cargill represents that, to the best of its knowledge as of the Effective Date, the patents and patent applications of  third parties that could impact the Work Plan and the commercialization thereof are provided in Exhibit E (Third Party Patents). Cargill  shall have no liability to Bioamber for Bioamber's acts or failure to act with respect to such Third Party Patents. The Parties shall meet  regularly throughout the Term of this Development Agreement to determine whether or not licenses to Third Party Patents are needed to  perform or continue to perform the Work Plan and the next steps if such licenses are needed.

13.2 Governing Law. This Development Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota,  United States of America, disregarding its conflicts of law rules.

13.3 Assignment. Neither Party shall assign this Development Agreement or the obligations contained herein without the express written  consent of the other Party.

13.4 Waiver. The failure of either Party to insist in any one or more instances upon performance of any terms or conditions of this Development  Agreement, is not to be construed as a waiver of future performance of any such term, covenant, or condition, but the obligations of either  Party with respect thereto will continue in full force and effect. No waiver will be effective unless in writing and signed by the waiving  Party.

13.5 Amendment. No amendment, modification, or waiver of the terms of this Development Agreement shall be binding unless placed in writing  and duly executed by the Parties' authorized representatives.  13.6 Severability. All provisions contained herein are severable, and in the event any of them is held to be invalid by any competent court or  arbitrator, this Development Agreement is to be interpreted as if such invalid provision were not contained herein.

13.7 Survivability. Sections 4 (Confidentiality), 5 (Intellectual Property), 6 (WRF Patents), 7 (Warranties), 8 (Indemnification), 13.2 (Governing  Law), and 13.7 (Survivability) will survive the expiration or earlier termination of this Development Agreement.

13.8 Entire Agreement. This Development Agreement supersedes all previous understandings between Cargill and Bioamber concerning the  subject matter of this Development Agreement, including but not limited to the Term Sheet executed by the Parties on December 3, 2009  and December 4, 2009, and the Mutual Confidentiality Agreement between the Parties which was effective July 17, 2009, and, together with  its attachments, including the Commercial License Agreement attached hereto as Exhibit D executed concurrently with this Development  Agreement, contains the entire agreement between the parties with respect to the subject matter hereof, and may not be amended, modified,  or supplemented except in writing and signed by both Parties specifically referring to this Development Agreement and the Commercial  License Agreement.

13.9 Bioamber Non-Compete Commitment. Bioamber will not itself or with or through third parties engage in the development of biocatalysts  other than E. coli for the production of succinic acid or salts thereof, except for the development activities under the terms and conditions  of this Development Agreement. This obligation endures for the Term of this Development Agreement. Notwithstanding the above,  Bioamber shall be permitted to evaluate other biocatalysts, but shall not undertake development of such biocatalysts. The purpose of such  evaluations shall be to identify and eventually secure alternative technologies, in the event that the CB1 development program is not  successful. As such, Bioamber shall cease within 30 days any further funding and development of a biocatalyst, including but not limited  to the genetic modification or the optimization of fermentation conditions, when such biocatalyst has demonstrated the ability to produce  succinic acid at a concentration above [***] grams per liter. This restriction shall apply to any succinic acid biocatalyst other than E. coli,  be it a biocatalyst developed in-house, licensed-in, or under development at a third party lab that is funded by Bioamber or to which  Bioamber has secured a future right or right of first refusal through direct payment, in kind contribution, grant, gift, differed payment or  commitment to a future payment.





The Parties, through their authorized representatives, hereby agree to the terms and conditions of this Development Agreement.

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CARGILL, INCORPORATED  Bio Technology Development Center     BIOAMBER S.A.S.

/s/ Jack Staboch       /s/ Jean-François Huc Signature     Signature

VP BioTDC     Director General Title     Title

4/16/10     April 15, 2010 Date     Date





Exhibit A   Work Plan   Milestones

[***]

MILESTONE 1

[***]   Time to achieve: Month 12

MILESTONE 2

[***]   Time to achieve: Month 30

MILESTONE 3

[***]   Time to achieve: Month 42      Cargill Confidential   - 13 -   * Confidential treatment requested





Exhibit B   Cargill Patents and Patent Applications











   Cargill Confidential   - 14 -   * Confidential treatment requested

Publication #     Title     Filing Date     Expiration Date

[***]

Publication #     Title     Filing Date     Expiration Date

[***]

Publication #     Title     Filing Date     Expiration Date

[***]

Publication #     Title     Filing Date     Expiration Date

[***]

Publication #     Title     Filing Date     Expiration Date

[***]

Publication #     Title     Filing Date     Expiration Date

[***]





Exhibit C   Licensed Tool Kit

Basic Package   Content:











Additional Fee Option   Content:



   Cargill Confidential   - 15 -   * Confidential treatment requested

  •   [***]     •   [***]     •   [***]     •   [***]     •   [***]

  •   The price will be negotiated, but as of the Effective Date of this Agreement, the fair market value is base package price of US  $[***]

  •   Genome sequence of CB1, including assembly and annotations as is Cargill's state of the art at the time of the request.

  •   The price will be negotiated, but as of the Effective Date of this Development Agreement, the fair market value is price of US  $[***]





EXHIBIT D

COMMERCIAL LICENSE AGREEMENT      Cargill Confidential   - 16 -   * Confidential treatment requested





EXHIBIT E   Third Party Patents relating to the Work Plan

Third Party Patents relating to Modified Work Plan

   Cargill Confidential   - 17 -   * Confidential treatment requested

Publication number and title   Assignee [***]

Publication number and title   Assignee [***]





EXHIBIT F   Cargill's Guiding Principles















Cargill's Compliance Policy on Intellectual Property

[*** 2 pages omitted.]      Cargill Confidential   - 18 -   * Confidential treatment requested

  •   Cargill will comply with the laws of all countries to which it is subject.     •   Cargill will not knowingly assist any third party to violate any law of any country, by creating false documents or by any other means.     •   Cargill will not pay or receive bribes or participate in any other unethical, fraudulent, or corrupt practice.     •   Cargill will always honor all business obligations that it undertakes with absolute integrity.     •   Cargill will keep its business records in a manner that accurately reflects the true nature of its business transactions.

  •   Cargill managers and supervisors will be responsible that employees, consultants and contract workers under their supervision are  familiar with applicable laws and company policies and comply with them. Further, they will be responsible for preventing, detecting,  and reporting any violations of law of Cargill policies.     •   Cargill employees will not become involved in situations that create a conflict of interest between the company and the employee.     •   Every year, all Cargill employees sign an agreement to live these principles.

A: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
****
Q: Exhibit 10.10   ASIA PACIFIC CABLE NETWORK 2     CONSTRUCTION AND MAINTENANCE   AGREEMENT     Singapore   April 18th, 2000





  TABLE OF CONTENTS   PARAGRAPH

    1 Definitions and Interpretations

      2 APCN 2 Configuration

      3 Establishment of the APCN 2 Management Committee

      4 Provision, Construction and Ownership of Segments

      5 Definition of APCN 2 Capital Costs

      6 Definition of Operation and Maintenance Costs

      7 Allocation and Billing of APCN 2 Costs

      8 Currency of Payment

      9 Keeping and Inspection of Books for Segment S and T

      10 Duties and Rights as to Operation and Maintenance of Segments

      11 Use of Segment T

      12 Acquisition and Use of Capacity

      13 Expansion of Equipped Capacity

      14 Increase or Decrease of Design Capacity

      15 Obligation to Provide Transiting Facilities to Extend APCN2 Capacity

      16 Obligation to Connect the APCN 2 with Inland Systems

      17 Direct Access to Network Interface and Equal Access to Terminal Station

      18 Duration of Agreement and Realization of Assets

      19 Obtaining of Approvals

      20 Privileges for Documents or Communications

      21 Relationship of Parties

      22 Assignment of Rights and Obligations

      23 Default

  1







  24 Waiver

      25 Compliance with Law

      26 Ratification of Decisions and Actions

      27 Resolution of Disputes

      28 Supplements and Amendments to this Agreement

      29 Execution of Agreement

      30 Successors Bound

      31 Confidentiality

      32 Settlement of Claims by Parties

      33 Force Majeure

      34 Severability

      35 Entire Agreement



Testamonium

  2





  SCHEDULES   Schedule A Parties to the Agreement     Schedule B Investment Shares, Ownership Interest, Voting Interests, and Allocation of Capital Cost and O&M Costs     Schedule C Capacity Allocation and Interest in Unallocated Capacity     Schedule D Sales of IRU Capacity         ANNEXES

    Annex 1 Terms of Reference for the Procurement Group     Annex 2 Terms of Reference for the AR&RSC, O&MSC, F&ASC and I&ASC     Annex 3 Terms of Reference for the Network Administrator     Annex 4 Terms of Reference for the Central Billing Party     Annex 5 Configuration of APCN 2     Annex 6 Billing Currency and Source of Rate for Financial Charges     Annex 7 Rules on Use of Capacity     Annex 8 Segment T Facilities and Functions   3





  ASIA PACIFIC CABLE NETWORK 2 CONSTRUCTION & MAINTENANCE AGREEMENT   THIS AGREEMENT, made and entered into this 18th day of April 2000, between and among the Parties signatory hereto (hereinafter collectively called Parties and individually called Party), which Parties are identified in Schedule A,   WITNESSETH:   WHEREAS, digital telecommunications services are being provided in the Asia Pacific Region by means of fiber optic submarine cable and satellite facilities; and   WHEREAS, other digital light-wave submarine cable systems, presently in service in the Asia Pacific Region, have facilitated a rapid growth of new telecommunications requirements designed to take advantage of reliable, secure and economically priced services based on state of the art and available digital technology; and   WHEREAS, it is now apparent that this rapid growth in traffic demand will lead to a greater demand for facilities in the Asia Pacific Region necessitating the construction of additional Asia Pacific fiber optic submarine cable facilities (hereinafter referred to as the Asia Pacific Cable Network 2 or APCN 2); and   WHEREAS, the reliability of telecommunications services and its usefulness to customers requires the availability of the appropriate facilities and technology, including the APCN 2 for diverse routing and instantaneous restoration of services; and   WHEREAS, China Telecom, CWHKTI, Chunghwa Telecom, Korea Telecom, Japan Telecom, NTT Com, KDD Corp., Telekom Malaysia, SingTel, and Telstra, (the MOU Parties) signed a Memorandum of Understanding to plan the APCN 2 effective from 16th June 1999 (hereinafter referred to as the MOU) to permit activities, as defined in the MOU; and   WHEREAS, the First Supplemental MOU, the Second Supplemental MOU, the Third Supplemental MOU and the Fourth Supplemental MOU were effective from October 5, 1999, October 6, 1999, February 29, 2000 and April 4, 2000 respectively; and   WHEREAS, the MOU and the Supplemental MOUs are hereinafter collectively called the MOU; and   WHEREAS, the MOU states that it shall continue in force until the signing, by the Parties, of the APCN 2 Construction and Maintenance Agreement; and   WHEREAS, the Parties now desire to construct the APCN 2 as a fully integrated Asia Pacific network comprised of 4 fully restorable fiber optic pairs; and   WHEREAS, the Parties now desire to define the terms and conditions upon which the APCN 2 will be provided, constructed, operated and maintained.   4





  NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants herein expressed, covenant and agree with each other as follows:   1. DEFINITIONS AND INTERPRETATIONS   1.1 The following definitions and interpretations shall apply to certain terms used in this Agreement:   (a) Affiliate: A company is the Affiliate of another if either company owns directly or indirectly less than 50% but no less than 10% of its equity.   (b) Branching Unit (BU): Equipment that permits interconnection between 3 cable Segments and provides the optical fiber and power conductor between 3 cable Segments.   (c) Cable Landing Point: Cable Landing Point shall be the beach joint or the mean low watermark of ordinary spring tides if there is no beach joint.   (d) Capacity Types shall be categorized as follows:   Allocated Capacity - capacity allocated in the APCN 2 to a Party in return for its financial investment.       Design Capacity - the maximum capacity that the APCN 2 is designed to provide which shall be no less than 2.5 Tbit/s.

      Equipped Capacity - the amount of capacity physically provided in the APCN 2 at any one time.       Initial Equipped Capacity - Initial Equipped Capacity of the APCN 2 shall be at least 80Gbit/s.       IRU Capacity - capacity acquired after execution of this Agreement on an IRU basis from the Unallocated Capacity.

      Unallocated Capacity - the difference in capacity between the Equipped Capacity and the Allocated Capacity.

  (e) Carrier: Any entity authorized or permitted under the laws of its respective Country, or another Country in which it operates, to acquire and use international transmission facilities for the provision of international telecommunications services and which is in possession of any necessary operating license to enable it to do so.   (f) Country: The word Country as used in this Agreement shall mean a country, territory or place, as appropriate.   5





  (g) Direct Access: The direct connection to the Network Interface of Segment S without going through any other party's equipment.   (h) Initial Parties: The Initial Parties are Advantel, C&W, China Telecom, China Unicom, Concert Ltd, Chunghwa Telecom, CWHKTI, Global One, JT, KDD, KPN, KT, Layer 2, MCIITI, MFN, NCIC, NTT Com, Onelink, PLDT, SingTel, StarHub, Teleglobe, Telstra, TFN, TM and Williams.   (i) IRU: Indefeasible Right of Use which does not convey ownership and voting rights in the management of the APCN 2.   (j) Minimum Investment Unit: A unit designated as the minimum unit of investment in the APCN 2, which is equivalent to one whole STM- 1 ring, allowing the use of two (2) half STM-1 ring circuits on any Path within the APCN 2. The Minimum Investment Unit is hereinafter termed as a MIU.   (k) Network Interface: The nominal STM-l digital/optical input/output ports, and/or STM-4, STM-16 and STM-64 on the digital/optical distribution frame (including the digital/optical distribution frame itself).   (l) Parent Company: A company that owns directly or indirectly no less than 50% of equity of a company.   (m) Path: The connectivity in the APCN 2 between any two Network Interfaces which is independent of the actual physical links used to connect these Network Interfaces.   (n) Provisional Acceptance: The issuance of a certificate of Provisional Acceptance shall be that of Segment S pursuant to the terms and conditions set forth in the Supply Contract.   (o) Ready For Provisional Acceptance Date: The date on which the entire Wet Segment of the APCN 2 is provisionally accepted by the Procurement Group on behalf of the Parties. The Ready for Provisional Acceptance Date (hereinafter referred to as the RFPA Date) shall be 31st August 2001, or such other date as may be agreed by the Management Committee.   (p) Ready for Service Date: The date on which commercial service can be placed on the entire APCN 2. For the purposes of this Agreement, the Ready For Service Date (hereinafter referred to as the RFS Date) shall be 30th September 2001, or such other date as may be agreed by the Management Committee.   (q) Subsidiary: A company that is directly or indirectly owned by a Parent Company holding no less than 50% of its equity.   6





  (r) Supply Contract: The contracts placed by the Procurement Group on behalf of the Parties for the supply of the Wet Segment of the APCN 2.   (s) Terminal Parties: The Terminal Parties are China Telecom, CWHKTI, Chunghwa Telecom, KDD, Korea Telecom, NTT Com, PLDT, SingTel, and Telekom Malaysia.   (t) Wet Segment: For the purposes of this Agreement, Segments S1, S2, S3, S4, S5, S6, S7, and S8 as defined below are collectively called the Wet Segment.   1.2 Schedules and Annexes   The Schedules and Annexes to this Agreement, and any written amendments thereto or any Schedules or Annexes substituted therefore, shall form part of this Agreement, and any Paragraph which contains a reference to a Schedule or Annex shall be read as if the Schedule or Annex was set out at length in the body of the Paragraph itself. In the event that there is any conflict between the terms and conditions of this Agreement and the Schedules and Annexes to this Agreement, the terms and conditions of this Agreement shall prevail.   1.3 Paragraph headings   The headings of the paragraphs are inserted for convenience and do not form part of this Agreement and shall not have any effect on the interpretation thereof.   1.4 Interpretation   Where the sense requires, words denoting the singular only shall also include the plural and vice versa. References to persons shall include firms and companies and vice versa. Reference to the male shall include the female.   2. APCN 2 CONFIGURATION   2.1 The configuration of APCN 2 shall be as shown in Annex 5, which shall be regarded as consisting of a terrestrial section (hereinafter called Segment T) and a submarine section (herein called Segment S or the Wet Segment).   2.2 Segment T shall be regarded as comprising of the following Segments:   Segment T1: A Terminal Station at Katong   Segment T2: A Terminal Station at Kuantan   Segment T3: A Terminal Station at Lantau   Segment T4: A Terminal Station at Chongming   7





  Segment T5: A Terminal Station at Pusan   Segment T6: A Terminal Station at Kitaibaraki   Segment T7: A Terminal Station at Chikura   Segment T8: A Terminal Station at Tanshui   Segment T9: A Terminal Station at Shantou   Segment T10: A Terminal Station at Batangas   2.3 Segments T1, T2, T3, T4, T5, T6, T7, T8, T9 and T10 shall each consist of:   (i) an appropriate share of land and buildings at the specified locations for the cable landing, Terminal Station and for the cable route including cable rights-of-way and ducts or conduits between the Terminal Station and its respective Cable Landing Point, and an appropriate share of common services and equipment at each of those locations together with equipment in each of those Terminal Stations and at a remote location as necessary which is solely associated with the APCN 2, but not part of the Wet Segment; and   (ii) An appropriate share of the test equipment.   2.4 Segment S shall be regarded as comprising of the following Segments:   Segment S1: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Katong; and the Network Interface at the Terminal Station at Kuantan.   Segment S2: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Kuantan; and the Network Interface at the Terminal Station at Lantau.   Segment S3: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Lantau; and the Network Interface at the Terminal Station at Chongming.   Segment S4: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Chongming; and the Network Interface at the Terminal Station at Pusan; and the Network Interface at the Terminal Station at Kitaibaraki.   8





  Segment S4A:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Chongming and BU1.       Segment S4B:

The whole of the submarine cable containing two (2) optical fiber pairs provided between BU1 and BU2.       Segment S4C:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Kitaibaraki and BU2.       Segment S4W:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Pusan and BU1.       Segment S4E:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Pusan and BU2.   Segment S5: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Kitaibaraki; and the Network Interface at the Terminal Station at Chikura.   Segment S6: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Chikura; and the Network Interface at the Terminal Station at Tanshui.   Segment S7: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Tanshui; and the Network Interface at the Terminal Station at Shantou.   Segment S8: The whole of the submarine cable containing four (4) optical fiber pairs provided between and including the Network Interface at the Terminal Station at Shantou; and the Network Interface at the Terminal Station at Batangas; and the Network Interface at the Terminal Station at Katong.   9





  Segment S8A:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Shantou and BU3.       Segment S8B:

The whole of the submarine cable containing two (2) optical fiber pairs provided between BU3 and BU4.       Segment S8C:

The whole of the submarine cable containing four (4) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Katong and BU4.       Segment S8N:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Batangas and BU3.       Segment S8S:

The whole of the submarine cable containing two (2) optical fiber pairs, provided between and including the Network Interface at the Terminal Station at Batangas and BU4.   2.5 Segment S shall include:   (i) all transmission, power feeding, system management, Network Protection Equipment and test equipment directly associated with, and required to operate and maintain the submersible plant including, where applicable, a remote control and supervisory equipment;   (ii) the power equipment provided wholly for use with the equipment listed in (i) above;   (iii) the transmission cable equipped with appropriate optical amplifiers, BUs, and joint housings between the applicable Terminal Stations:   (iv) the sea earth cable and electrode system and/or the land earth system, or an appropriate share thereof, associated with the terminal power feeding equipment in the respective Terminal Stations; and   (v) terminal equipment, including Network Interface for STM-1, STM-4, STM-16 and STM-64 levels, in each of the Terminal Stations.   2.6 In this Agreement, references to any Segment, however expressed, shall be deemed to include, unless the context otherwise requires, additional property incorporated therein by agreement of the Management Committee. Each Segment shall be regarded as including   10





  its related spare and standby units and components, including, but not limited to, optical amplifiers, BUs, cable lengths, and terminal equipment.   11





  3. ESTABLISHMENT OF THE APCN 2 MANAGEMENT COMMITTEE   3.1 The Parties shall form an APCN 2 Management Committee (hereinafter referred to as the Management Committee), for the purpose of directing the progress of engineering, provision, installation, bringing into service and continued operation of the APCN 2, consisting of one representative of each of the Parties to this Agreement. The Management Committee shall make all major decisions necessary to effectuate the purposes of this Agreement.   3.2 Two or more Parties may designate the same Party to serve as their representative at specific meetings of the Management Committee and/or its Subcommittees established pursuant to Subparagraph 3.7 of this Agreement.   3.3 Each of the Initial Parties shall, on a rotational basis, provide the Chairman of the Management Committee which will meet on the call of a Chairman or whenever requested by one or more Parties together representing at least five per cent (5%) of the total voting interests specified in Schedule B. The Chairman shall give at least thirty (30) days' advance notice of each meeting, together with a copy of the draft agenda. In cases of emergency, such notice period may be reduced where at least seventy-five (75) percent of the total voting interests are in agreement. Documents for the meeting should be made available to members at least fourteen (14) days before the meeting, but the Management Committee may agree to discuss papers distributed on less than fourteen (14) days' notice.   3.4 The Management Committee shall make every reasonable effort to reach agreement with respect to matters to be decided. Unless otherwise provided for in this Agreement, in the event an agreement cannot be reached, the decision will be carried on the basis of simple majority of the total voting interests specified in Schedule B, which must include a simple majority of the voting interests of the Terminal Parties and a simple majority of the voting interests of the non-Terminal Parties. A member of the Management Committee representing more than one Party shall separately cast the votes to which each Party he represents is entitled.   3.5 Any Party not represented at a Management Committee meeting, but entitled to vote, may vote on any matter on the agenda of such a meeting by either appointing a proxy in writing or giving notice of such vote to the Chairman prior to the submission of such matters for vote at such meetings.   3.6 No decisions of the Management Committee, its Subcommittees or any other groups established by the Management Committee shall override any provisions of this Agreement or in any way diminish the rights or prejudice the interests granted to any Party under this Agreement.   3.7 To aid the Management Committee in the performance of its duties, the following Subcommittees shall be formed, and said Subcommittees, under the direction of the   12





  Management Committee, shall be responsible for their respective areas of interest listed in Annex 2 and any other areas of interest designated by the Management Committee:   (i) Investment and Agreement Subcommittee (hereinafter referred to as I&ASC)   (ii) Financial and Administrative Subcommittee (hereinafter referred to as F&ASC)   (iii) Operations and Maintenance Subcommittee (hereinafter referred to as O&MSC)   (iv) Assignments, Routing, and Restoration Subcommittee (hereinafter referred to as AR&RSC)   3.8 The Management Committee shall form a Procurement Group (hereinafter referred to as PG), consisting of representatives from each of the Initial Parties. This group shall act on behalf of the Parties to this Agreement for the purpose of arranging for the construction, implementation, and installation of the Wet Segment of APCN 2 and be solely responsible for all actions as may be required to contract with the Suppliers to provide the Wet Segment of the APCN 2. The Terms of Reference of the PG are contained in Annex 1.   3.9 The Management Committee may establish such other subcommittees or working groups as it shall determine within its discretion to provide assistance in the performance of its responsibilities. The PG and the Subcommittees shall meet at least once annually after the execution date of this Agreement and more frequently if necessary, until two years following the RFS Date and thereafter as may be appropriate. Meetings of the PG and a Subcommittee may be called to consider specific questions at the discretion of its Co-Chairmen whenever requested by one or more Initial Parties.   3.10 The respective Co-Chairmen of each Subcommittee, or a designated representative of each Subcommittee, shall attend the Management Committee meetings and meetings of each other Subcommittee in an advisory capacity as necessary. On or about two (2) years after the RFS Date, the Management Committee shall determine whether any of its Subcommittees should remain in existence. If the Management Committee determines that one or more of its Subcommittees shall not remain in existence, the responsibilities assigned to a Subcommittee whose existence has been terminated under this Subparagraph 3.10 shall revert to the Management Committee unless otherwise provided for in this Agreement.   3.11 The Terms of Reference for the Network Administrator (hereinafter referred to as NA) are as set forth in Annex 3 of this Agreement.   3.12 The Terms of Reference for the Central Billing Party (hereinafter referred to as CBP) are as set forth in Annex 4 of this Agreement. At or after the RFS Date the CBP shall be reappointed or a new CBP appointed from the Parties by an open tendering process.   3.13 The Terms of Reference of all Subcommittees, the NA, the CBP and the PG established pursuant to this Paragraph 3 shall be amended by the Management Committee as and when as it is necessary.   13





  4. PROVISION, CONSTRUCTION AND OWNERSHIP OF SEGMENTS   4.1 The following Parties shall own, provide and agree to act as the Terminal Parties for the following Segments;   SEGMENT

TERMINAL PARTY       T1

SingTel T2

TM T3

CWHKTI T4

China Telecom T5

KT T6

NTT Com T7

KDD T8

Chunghwa Telecom T9

China Telecom T10

PLDT   4.2 The Terminal Parties shall make available to the other Parties hereto any reasonable information requested by the Parties relating to the engineering, provision, construction, or installation of Segment T in a timely manner. The various Segment T shall be provided in sufficient time to permit APCN 2 to be placed into operation by the RFS Date.   4.3 Ownership of the Wet Segment shall be as shown in Schedule B to this Agreement. The Wet Segment of APCN 2 shall be owned by the Parties in common and undivided shares.   4.4 The provision of the Wet Segment shall be through a Supply Contract to be placed by the PG with Suppliers subject to approval by the Management Committee.   4.5 Each of the Parties shall be entitled, on request and at its own expense, to receive from the PG a copy of the Supply Contract subject to the acceptance by each such Party of any reasonable conditions of confidentiality imposed by the Supply Contract. 4.6 The PG shall ensure that the Supply Contract specifies that the Wet Segment is to be provided by the RFPA Date.   4.7 The PG shall ensure that the Supply Contract shall afford them or their designated representatives reasonable rights of access to examine, test, and inspect the APCN 2 cable equipment, material, supplies and installation activities.   4.8 In the event that the Wet Segment fails to meet the specifications referred to in the Supply Contract for its provision, fails to provide the specified capacity, or is not engineered, provided, installed and ready in sufficient time to meet the RFPA Date as specified in the Supply Contract, or if the Suppliers are otherwise in material breach of the Supply Contract, the PG may, pursuant to this Paragraph 4 and in accordance with the Supply Contract, take such actions as may be necessary to exercise the rights and   14





  remedies available under the terms and conditions of the Supply Contract. Such actions by the PG shall be subject to any direction deemed necessary by the Management Committee.   4.9 The members of the PG shall not be liable to any other Party or to each other for any loss or damage sustained by reason of a Supplier's failure to perform in accordance with the terms and conditions of its Supply Contract, or as a result of APCN 2 not meeting the RFPA Date as specified in the Supply Contract, or if APCN 2 does not perform in accordance with the technical specifications and other requirements of the Supply Contract, or APCN 2 is not integrated or placed into operation. The Parties recognize and agree that the PG does not make any representations or warranties, including, but not limited to, any representation or warranty regarding:   (i) the performance of the Supply Contract by the Supplier   (ii) the performance or reliability of the Wet Segment, or   (iii) that APCN 2 shall be integrated or placed into operation and the Parties hereby agree that nothing in this Agreement shall be construed as such a warranty or guarantee.   5. DEFINITION OF APCN 2 CAPITAL COSTS   5.1 The capital costs (herein referred to as the Capital Costs) are the costs incurred in connection with the engineering, provision, construction and installation of Segment S and Segment T, or causing them to be engineered, provided, constructed and installed and shall include:   (a) appropriate costs, including appropriate financial charges, incurred under the MOU in respect of specific activities such as desk top surveys and meeting expenses that are reasonably related to the construction of the APCN 2;   (b) those costs payable to the Supplier(s) under the Supply Contract attributable to the Wet Segment;   (c) the fixed costs and the additional Capital Costs to be reimbursed to the Terminal Parties for the provision of the Terminal Stations in accordance with the costs schedule and scope of work given in Annex 8;   (d) those costs directly incurred by the Initial Parties which shall be fair and reasonable in amount and not included in the Supply Contract and which have been directly and reasonably incurred solely for the purpose of, or to be properly chargeable in respect of, such engineering, provision, construction, installation and laying of the Wet Segment, including but not limited to, the costs of engineering, design, materials, manufacturing, procurement and inspection, installation, removing (with appropriate reduction for salvage), cable ship and other ship costs, burying, fisherman's compensation including reasonable related   15





  expenses, testing associated with laying or installation, customs duties, taxes (except income tax imposed upon the net income of a Party), appropriate financial charges, supervision, billing activities, overheads and insurance of or a reasonable allowance in lieu of insurance if such Party elects to carry a risk itself, being a risk which is similar to one against which a supplier has insured or against which insurance is usual or recognized or would have been reasonable;   (e) those fees payable to the NA, up to the RFS Date, in fulfilling its responsibilities as set forth in Annex 3;   (1) those fees payable to the CBP, up to the RFS Date, in fulfilling its responsibilities as set forth in Annex 4;   (g) those costs incurred, up to the RFS Date, by the custodians of the original, amendments and supplements to this Agreement, for distributing certified photocopies of this Agreement and/or amendments or supplements to the Parties to this Agreement;   (h) those costs reasonably incurred (as approved by the Management Committee) by the Parties, up to the RFS Date, hereto in the holding of' the meetings of the PG and I&ASC;   (i) those costs reasonably incurred (as approved by the Management Committee) by the Parties, up to the RFS Date, hereto in the hosting of the meetings of the Management Committee and its Subcommittees; and   (j) the costs associated with any additional work or property incorporated into the Segment S or Segment T subsequent to the RFS Date by agreement of the Management Committee.   5.2 For purposes of this Agreement, the cost of the repair or replacement of any part of the APCN 2 in the event of damage or loss arising during construction, laying, burying installing and the bringing into operation of the APCN 2, which is attributable under the Supply Contract to the Parties, shall be regarded as part of the Capital Costs.   5.3 Any of the Parties may at its own expense insure against risks so far as its own share of such costs is concerned. Should the Parties jointly agree to insure against risks, the costs of such insurance shall form part of the Capital Costs, as approved by the Management Committee.   16





  6. DEFINITION OF OPERATION AND MAINTENANCE COSTS   The costs associated with the operation and maintenance duties (herein called the O&M Costs) are the costs reasonably incurred in the operation and maintenance of Segment S and Segment T including, but not limited to:   (a) the cost of attendance, testing, adjustments, repairs and replacements, cable ships, (including standby costs), cable depots, maintenance and repair devices that are or may hereafter become available, customs duties, taxes, (except income tax imposed on the net income of a Party) paid in respect of such facilities, billing activities, financial charges attributable to other Parties, shares of costs incurred by a Terminal Parties, supervision, overheads and costs and expenses reasonably incurred on account of claims made by or against other persons in respect of such facilities or any part thereof and damages or compensation payable by the Parties concerned on account of such claims;   (b) those costs incurred by the Terminal Parties, including additions thereto, with respect to the operation and maintenance of their respective Terminal Stations, allocable to the APCN 2. Where the use of a Terminal Station or of certain equipment situated therein, such as power supply or testing and maintenance equipment, is shared, by agreement of the Parties, by the APCN 2 and other communications systems terminating at that Terminal Station, the costs of operation and maintenance of such shared Terminal Station or equipment (not solely attributable to a particular communication system or systems) will be allocated among the systems involved in the proportions in which they use the shared equipment or facility. For such purposes, the Management Committee shall approve the method for determining the portion of a shared Terminal Station allocable to the APCN 2. Costs as used in this Paragraph 6 with reference to each of the Terminal Stations shall include costs reasonably incurred in operation and maintenance of the facilities involved, including, but not limited to, the cost of attendance, testing, adjustments, repairs and replacements, customs duties, taxes (except income tax imposed upon the net income of a Party) paid in respect of such facilities, billing activities, administrative costs, financial charges, and costs and expenses reasonably incurred on account of claims made by or against other persons in respect of such facilities or any part thereof and damages or compensation payable by the Terminal Station owner on account of such claims;   (c) those fees payable to the NA, after the RFS Date, in fulfilling its responsibilities as set forth in Annex 3;   (d) those fees payable to the CBP after the RFS Date, in fulfilling its responsibilities as set forth in Annex 4;   17





  (e) those costs reasonably incurred (as approved by the Management Committee) by the Parties, after the RFS Date, hereto in the holding of the meetings of the PG and the I&ASC; and   (f) those costs reasonably incurred (as approved by the Management Committee) by the Parties, after the RFS Date, hereto in the hosting of the meetings of the Management Committee and its Subcommittees.   7. ALLOCATION AND BILLING OF APCN 2 COSTS   7.1 The APCN2 Capital Costs as defined in Paragraph 5 shall be borne by the Parties in the proportions set forth in Schedule B.   7.2 The O&M Costs as defined in Paragraph 6 shall be borne by the Parties in the proportions set forth in Schedule B.   7.3 The Terminal Parties shall each render invoices to the CBP for any O&M Costs incurred as outlined in Paragraph 6 not more frequently than quarterly and by the tenth (10th) day of the appropriate month in accordance with procedures to be established by the F&ASC and approved by the Management Committee. The Party rendering an invoice shall furnish such further details of such invoice as the other Parties may reasonably require. On the basis of such invoices, the CBP shall pay such amounts as may be owed sixty (60) days from the 10th calendar day of the month in which the invoice was rendered or on the following working day if day sixty (60) is not a working day in the CBP's Country.   7.4 The Terminal Parties shall each render invoices to the CBP for any Capital Costs incurred as outlined in Paragraph 5 (except Terminal Station cost) not more frequently than quarterly and by the tenth (10th) day of the appropriate month in accordance with procedures to be established by the F&ASC and approved by the Management Committee. The Party rendering an invoice shall furnish such further details of such invoice as the other Parties may reasonably require. On the basis of such invoices, the CBP shall pay such amounts as may be owed sixty (60) days from the 10th calendar day of the month in which the invoice was rendered or on the following working day if day sixty (60) is not a working day in the CBP's Country.   7.5 Unless the Management Committee authorizes changes to the procedure for the rendering of bills associated with the Capital Costs or O&M Costs, the CBP shall promptly render bills, in accordance with this Paragraph 7 and the billing and payment procedures established by the F&ASC and approved by the Management Committee, to each of the Parties for such Parties' pro rata shares of these costs. Such bills shall be rendered by the CBP not more frequently than quarterly and shall contain a reasonable amount of detail to substantiate them. On the basis of such bills, each Party shall pay the CBP, such amounts as may be owed by the end of the calendar month following the calendar month in which the bill was rendered, on the date specified by the CBP.   18





  7.6 In the case of bills containing costs billed on a preliminary billing basis, appropriate adjustments will be made in subsequent bills promptly after the actual costs involved are determined. As soon as practicable the CBP shall make such adjustments and render such bills or arrange for such credits as appropriate due to changes in the cost actually incurred.   7.7 As soon as practicable after the RFS Date, the amount of each Party's share of the Capital Costs shall be computed by the CBP who shall make appropriate adjustments and render any necessary bills or arrange for any necessary refunds by way of final settlement in order that each Party may bear its proper share of the costs as provided in this Paragraph 7.   7.8 For purposes of this Agreement, financial charges shall be computed as applicable on a daily basis from the date payment is incurred until the date payment is due, at a rate equal to the lowest publicly announced prime rate or minimum commercial lending rate, however described, for 90 day loans in the currencies of the Initial Parties or the currency of billing, as applicable, charged by established commercial banks in the countries concerned on the fifteenth day of the month in which the costs were incurred by the invoicing Parties. If such a day is not a business day, the rate prevailing on the next business day shall be used. The source of the rate of such financial charges shall be as shown at Annex 6. The application of financial charges relating to costs incurred for the APCN 2 Capital Costs and O&M Costs shall be limited to a maximum of 120 days, unless otherwise approved by the Management Committee.   7.9 Amounts billed and not paid when due shall accrue extended payment charges from the day following the date on which payment was due until paid. If the due date is not a business day, the due date shall be postponed to the next business day. For the purpose of this Agreement, extended payment charges shall be computed at three hundred percent (300%) of the rate described in Subparagraph 7.8 on the day following the date payment on the bill was due. In the event that applicable law does not allow the imposition of extended payment charges at the rate established in accordance with this Subparagraph 7.9, extended payment charges shall be at the highest rate permitted by applicable law, which in no event shall be higher than the rate computed in accordance with this Subparagraph 7.9. For purposes of this Agreement, paid shall mean that the funds are immediately available for use by the recipient.   7.10 Credits for refunds of financial charges and bills for extended payment charges shall not be rendered if the amount of charges involved is less than the equivalent of one hundred ($100) US dollars or its equivalent in the billing currency.   7.11 A bill shall be deemed to have been accepted by the Party to whom it is rendered if that Party does not present a written objection on or before the date when payment is due. If such objection is made, the Parties concerned shall make every reasonable effort to settle promptly the dispute concerning the bill in question. If the objection is sustained and the billed Party has paid the disputed bill, the agreed upon overpayment shall be promptly refunded to the objecting Party by the invoicing Party together with any financial charges   19





  calculated thereon at a rate determined in accordance with Subparagraph 7.8 of this Agreement from the date of payment of the bill to the date on which the refund is transmitted to the objecting Party. If the objection is not sustained and the billed Party has not paid the disputed bill, said Party will pay such bill promptly together with any extended payment charges calculated thereon at a rate determined in accordance with Subparagraph 7.9 of this Agreement from the day following the day on which payment was due until paid. Nothing in this Subparagraph 7.11 shall relieve a Party from paying those parts of a bill that are not in dispute.   7.12 Upon the signing of this Agreement, the CBP shall render bills to the Parties for approximately five percent (5%) of their financial commitment in APCN2 as determined by Schedule B. The exact amount of the bills and the billing procedure shall be determined by the Management Committee. The funds received by the CBP from these bills shall be kept in an interest bearing account for the benefit of the Parties to be maintained by the CBP and the used solely and in their entirety to pay the first invoices received by the CBP.   8. CURRENCY OF PAYMENT   All invoices rendered to the CBP shall be in the currency of the United States, or in the currency of the invoicing Party which is specified in Annex 6 or the currency in which the cost was incurred in the case of O&M Costs. Such invoices shall be paid in the currency in which the invoices are rendered. The CBP shall render bills to the Parties in the currency of the United States and be paid in the same currency. In conjunction with the CBP, the F&ASC shall develop procedures to deal with the differences between the exchange rates in the circumstances when the currency of invoices rendered to the CBP is not the currency of the United States.   9. KEEPING AND INSPECTION OF BOOKS FOR SEGMENT S AND T   9.1 For those portions of the Wet Segment, if any, specified in the Supply Contract as cost incurred items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain such books, records, vouchers and accounts of all such costs with respect to the engineering, provision and installation of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   9.2 For those portions of the Wet Segment specified in the Supply Contract as fixed cost items, the PG shall ensure that the Supply Contract requires the Supplier to keep and maintain records with respect to their respective billing of those items for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   9.3 The PG shall ensure that the Supply Contract requires the Supplier to obtain from their contractors and subcontractors such supporting records, for other than the cost of fixed cost items, as may be reasonably required by Subparagraph 9.1 and to keep and maintain such records for a period of five (5) years from the RFPA Date of the Wet Segment, as specified in the Supply Contract.   20





  9.4 The PG shall ensure that the Supply Contract shall afford the Parties to this Agreement the right to review the books, records, vouchers, and accounts required to be kept, maintained, and obtained pursuant to Subparagraphs 9.1, 9.2 and 9.3.   9.5 With respect to costs incurred for the provision of the Wet Segment by a Party, comparable records to those specified in Subparagraphs 9.l, 9.2 and 9.3 as appropriate, shall be maintained by the Party for a period of five (5) years from the date that such costs were incurred.   9.6 The PG and the Terminal Parties shall each keep and maintain such books, records, vouchers, and accounts of all costs that are incurred in the engineering, provision and installation of the Wet Segment and Segment T and not included in the Supply Contract, which they incur directly, for a period of five (5) years from the RFS Date or the date the work is completed, whichever is later. The CBP shall keep and maintain such books, records, vouchers and accounts with respect to its billing of costs incurred by the Terminal Parties and any other Party having incurred costs for implementation of APCN 2 as authorized by the Management Committee, and costs billable under the Supply Contract for a period of five (5) years from the System RFS Date or the date on which the work is completed, whichever is later.   9.7 With respect to the operation and maintenance costs of Segments T and the Wet Segment, such books, records, vouchers, and accounts of costs, as are relevant, shall be kept and maintained by the Terminal Parties for a period of five (5) years from the date on which the corresponding bills are rendered to the Parties. If a Terminal Party does not retain these records beyond this period, a summary of important items should be retained for the life of APCN 2.   9.8 Any Party shall have the right to review or audit the relevant books, records, vouchers, and accounts of costs pursuant to this Paragraph 9. In affording the right to review or audit, any such Party whose records are being reviewed or audited shall be permitted to recover, from the Party or Parties requesting the review or audit, the entire costs reasonably incurred in complying with the review or audit. In the case of an audit initiated by the Management Committee and exercised by the F&ASC, the audited Party or Parties shall be permitted to recover the entire costs of the review or audit from the Parties in the proportions specified in Schedule B.   9.9 Any rights of review and audit pursuant to this Paragraph 9 shall only be exercisable through the F&ASC in accordance with the F&ASC's audit procedures.   10. DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE OF SEGMENTS   10.1 Each Terminal Party shall be solely responsible for the operation and maintenance of their respective Segment T as identified in Paragraph 4 and that portion of Segment S between the Network Interface at the Terminal Station and their respective Cable   21





  Landing Point. Such Terminal Party shall use all reasonable efforts to maintain or cause to be maintained economically their respective Segment T and such portion of Segment S, in efficient working order.   10.2 The Terminal Parties (for the purposes of this Paragraph 10, collectively called the Maintenance Authorities and each individual called a Maintenance Authority or MA), shall be jointly responsible for the operation and maintenance of the Wet Segment and shall use all reasonable efforts to maintain economically the Wet Segment in efficient working order and with an objective of achieving effective and timely repairs when necessary.   10.3 Prior to the RFS Date the MAs shall submit for review by the O&MSC and approval by the Management Committee appropriate practices and procedures for the continued operation and maintenance of the Wet Segment. The MAs shall each provide information to the O&MSC regarding the practices and procedures for the continued operation and maintenance of their respective Segments. The MAs shall also furnish such budgetary estimates of the cost of such operation and maintenance of the APCN 2 as the Management Committee may reasonably request. Following the RFS Date, the MAs shall provide the O&MSC and the Management Committee with such reports as it may reasonably require on the operation of the APCN 2 including any proposals for planned repair or improvement work, together with appropriately revised budgetary estimates relating to the operation and maintenance of the APCN 2. The O&MSC may review and amend the practices and procedures for the operation and maintenance of the Wet Segment, subject to the approval of the Management Committee. To facilitate in the maintenance of the APCN 2, the MAs may revise the allocation of responsibilities amongst themselves for the Wet Segment between the Cable Landing Points and any such decision shall be subject to the approval of the Management Committee.   10.4 The MAs shall have the right to deactivate the Wet Segment or any part thereof, in order to perform their duties. Prior to such deactivation, reasonable notice shall be given to, and coordination shall be made with, the other Parties hereto. To the extent possible, sixty (60) days prior to initiating action, the MA involved shall advise the other Parties hereto in writing of the timing, scope, and costs of significant planned maintenance operations, of significant changes to existing operations and maintenance methods and of contractual arrangements for cable ships that will have a significant impact on operation or maintenance costs. Should one or more Parties representing at least two- thirds (66.67%) of the total voting interests in accordance with Schedule B, wish to review such an operation or change prior to its occurrence, such Party or Parties shall notify the appropriate Maintenance Authority and a O&MSC Co-Chairman in writing within thirty (30) days of such advice. Upon such notification, the O&MSC shall initiate action to convene an ad hoc meeting for such review.   10.5 Notwithstanding Paragraph 32, each MA shall be authorized to pursue claims in its own name, on behalf of the Parties, in the event of any damage or loss to the APCN 2 and may file appropriate lawsuits or other proceedings on behalf of the Parties. The MA shall immediately inform the Management Committee and comply with any direction   22





  therefrom. Subject to obtaining the prior concurrence of the Management Committee, a MA may settle or compromise any such claims and execute releases and settlement agreements on behalf of the Parties as necessary to effect a settlement or compromise.   10.6 Each Party that has designed or procured equipment used in the APCN 2 shall give necessary information relating to the operation and maintenance of such equipment to the MA responsible for operating and maintaining such equipment, as reflected in this Paragraph 10. Each Maintenance Authority shall have prompt access necessary for the performance of its   10.7 [Missing]   interruption. if the MA responsible, as specified in this Paragraph 10, fails to restore those facilities to efficient working order and operation within a reasonable time after having been called upon to do so by any other Party to whom capacity is assigned by this Agreement, the Management Committee may, to the extent that it is practical to do so, place, or cause to be placed, such facilities in efficient working order and operation and charge the Parties their proportionate shares of the costs reasonably incurred in doing so.   10.8 Each Party to this Agreement, at its own expense, shall have the right to inspect from time to time the operation and maintenance of any portion of the APCN 2 and to obtain copies of the maintenance records. For this purpose, the Maintenance Authority shall retain significant records, for a period of not less than five (5) years from the date of the record. If these records are destroyed at the end of this period, a summary of important items should be retained for the life of the APCN 2.   10.9 The MAs shall be entitled to establish the necessary agreements in respect of the crossings by the Wet Segment of other undersea plant, including but not limited to pipelines, and may sign these agreements on behalf of the Parties after approval by the Management Committee and shall provide the Parties with appropriate copies of these agreements on request.   11. USE OF SEGMENT T   11.1 The Terminal Parties hereby grant to the Parties accessing APCN 2 at their respective terminal station, the right of use in the relevant Segment T (hereinafter referred to as Terminal Station Right of Use) on the terms and conditions stated in this Paragraph 11, to the extent required for the use of its Allocated Capacity, for the purpose of using APCN 2 and carrying on the related activities at that location in accordance with this Agreement. This Terminal Station Right of Use shall commence on the RFS Date and shall continue for the duration of this Agreement.   11.2 In the event that an agreement for another cable system utilizing any Terminal Station of the APCN 2 is terminated prior to the termination of this Agreement, the owner of the respective Segment T, with the agreement of the Parties hereto, shall take all necessary   23





  measures to ensure that the Terminal Station in question will be available for the APCN 2 for the duration of this Agreement on fair and equitable terms. If the Terminal Station in question is not available for the landing and terminating of the APCN 2 for any reason, the owner of the Terminal Station shall provide reasonable advance notice to all Parties and such owner, in agreement with the Parties hereto, shall take all necessary measures to ensure that another appropriate Terminal Station will be available for the APCN 2 for the duration of this Agreement on terms and conditions similar to those contained in this Agreement. Applicable costs to the Parties will be determined by the Management Committee.   11.3 For each Terminal Station Right of Use, the Parties hereto shall not be required to pay any additional charges over and above the Capital Costs and O&M costs.   11.4 Notwithstanding Subparagraph 11.1 of this Agreement, a Party thereby granted a Terminal Station Right of Use interest in Segment T may, prior to the commencement of that Terminal Station Right of Use interest, elect to renounce its Terminal Station Right of Use entitlement and to instead have use of any Segment T for the duration of this Agreement on such terms and conditions as are agreed between that Party and the relevant Terminal Party, and in such event the provisions of Subparagraphs 11.1 of this Agreement shall apply in relation to such use except insofar as they may be modified by such agreements. This Subparagraph 11.4 shall not operate to confer on a Party any financial or other benefit of substance to which that Party would not otherwise be entitled under this Agreement.   11.5 The Terminal Parties agree to grant a Terminal Station Right of Use to APCN 2 IRU purchasers.   11.6 In the event of a sale or other disposition of Segment T1, T2,T3, T4, T5, T6, T7, T8, T9 and T10, or part thereof prior to the termination of this Agreement, the owner shall share with the other Parties hereto any net proceeds, or costs, of such sale or disposition received, or expended, by the owner, to the extent allocable to the Capital Costs, in the proportions set forth in Schedule B.   12. ACQUISITION AND USE OF CAPACITY   12.1 Capacity of APCN 2 can only be used by a carrier.   12.2 Parties shall obtain Allocated Capacity in the form of MIU on an ownership basis as shown in Schedule C, in return for their financial investment as identified in Schedule B.   12.3 Procedures for Parties activation of their Allocated Capacity will be developed by the AR&RSC and the NA for Management Committee approval.   24





  ASSIGNMENT OF CAPACITY   12.4 For each MIU of its Allocated Capacity, a Party is allowed to assign two (2) half STM-l circuits on any Path within the APCN 2. All such circuits are ring-protected. Additional ring-protected half STM-1 circuits may be granted proportionately to a Party's Allocated Capacity as shown in Schedule C at the discretion of the Management Committee according to the recommendation of the AR&RSC and the NA.   12.5 The Parties may designate a portion of their Allocated Capacity in specific Paths of the APCN 2 as:   (i) Jointly Assigned Circuit (hereinafter referred to as JAC) which shall be considered as consisting of two half STM-I circuits, with one half STM-1 circuit assigned to a Party, which together with the corresponding half STM-1 circuit, shall be used for the provision of international telecommunications services between such a Party and another Carrier that has received the right of use pursuant to this Paragraph 12 or an APCN 2 IRU purchaser. Any alteration to the JAC is subject to bilateral agreement between both Carriers.   (ii) Wholly Assigned Circuit (hereinafter referred to as WAC) which shall be considered as consisting of two half STM-1 circuits assigned to one Party.   USE OF WHOLLY ASSIGNED CIRCUIT   12.6 A Party is allowed to use its WAC for the provision of international telecommunications services with itself, its Subsidiary, its Parent Company and/or the Subsidiary of the Party's Parent Company provided that the correspondent parties are also Carriers.   12.7 A Party is also allowed to use its WAC to interconnect with other communication systems for the provision of international telecommunications services terminating outside the APCN 2 landing Countries. If such WAC is originated from any APCN 2 landing Country, such Party must be a Carrier of that Country.   12.8 A Party is also allowed to use its WAC for the provision of international telecommunications services with its Affiliate and/or the Affiliate of the Party's Parent Company provided that this Affiliate is a Carrier and a cash contribution is made by the Party to a special fund dedicated solely to fund future upgrades to increase the Equipped Capacity. The amount of the contribution is described in Annex 7.   PORTABILITY OF CAPACITY   12.9 A Party is allowed to de-assign its JAC and/or WAC to its Allocated Capacity provided that bilateral agreement is given by the concerned Camera and according to the guidelines to be developed by the AR&RSC and the NA.   12.10 Re-assignment of Allocated Capacity which resulted from the de-assignment of the JAC and/or WAC shall give priority to the assignment of Allocated Capacity which has not   25





  been de-assigned before, in the event that there is any conflicting requirement for use of capacity on the APCN 2.   12.11 Under no circumstances shall a Party's JAC and/or WAC be de-activated due to the assignment of other Parties' Allocated Capacity.   TRANSFER OF CAPACITY   12.12 For the purpose of this Agreement, Transfer of capacity (hereinafter called Transfer) is the making available of all the right of use of the capacity being made available that is accorded to a Party by this Agreement to a third party without transferring the Party's other obligations and rights including the right of Transfer.   12.13 Transfer of a Party's Allocated Capacity to its Subsidiary or its Parent Company or the Subsidiary of the Party's Parent Company is allowed provided that the capacity transferred is in multiples of the MIU and that the recipient of the transferred capacity is a Carrier.   12.14 Transfer of a Party's Allocated Capacity to its Affiliate and/or the Affiliate of the Party's Parent Company is also allowed provided that the capacity transferred is in multiples of the MIU and that the recipient of the transferred capacity is a Carrier. For the Transfer to an Affiliate, the transferring party shall make a cash contribution to a special fund dedicated solely to fund future upgrades to increase the Equipped Capacity. The amount of the contribution is described in Annex 7.   12.15 The conditions applicable to the use and Transfer of capacity as specified in Annex 7 shall be relaxed after the Equipped Capacity is expanded to four (4) times of Initial Equipped Capacity or two (2) years after the RFS date whichever comes first unless an earlier date is approved by the Management Committee. Any relaxations on these conditions shall be approved by a vote of the members of the Management Committee representing at least seventy-five percent (75%) of the total voting interests as specified in Schedule B.   12.16 The Unallocated Capacity in the APCN 2 shall be owned by the Parties in common and undivided shares in accordance with the percentages in Schedule C.   12.17 IRU Capacity will be sold at the MJU level. Such IRU Capacity will be sold from the Unallocated Capacity. Proceeds from the sale of such IRU Capacity shall be used to fund the Expansion of the APCN 2 Equipped Capacity.   12.18 A Party or IRU purchaser may use its MIU with itself, another Party, or IRU purchaser to form matched circuits.   12.19 The distribution of capacity from the initial Unallocated Capacity shall be made no later than three (3) years from the RFS date on a pro rata basis, in MIUs, in accordance with the percentages in Schedule C. The exact time to implement such distribution of capacity   26





  shall be decided by a vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B.   12.20 Once the Equipped Capacity is expanded to six (6) times of Initial Equipped Capacity or three (3) years after the RFS date whichever comes first unless an earlier date is approved by the Management Committee, any Party is entitled to sell IRU to other Carriers from its Allocated Capacity on a private basis without any restrictions except that the IRU shall be for the life of APCN 2. The terms and conditions including pricing of such private IRU sales are bilateral matters between granting Party and purchaser.   12.21 When Unallocated Capacity is depleted, and during the period until the availability of additional Unallocated Capacity, a Party may be allowed to sell IRU to other Carriers from its Allocated Capacity privately subject to the Management Committee's approval on a case by case basis. The terms and conditions including pricing of such private IRU sales are bilateral matters between granting Party and purchaser.   12.22 Notwithstanding any other provisions in this Paragraph 12, when the Equipped Capacity is expanded to six (6) times of Initial Equipped Capacity or three (3) years after the RFS date whichever comes first, any Party is entitled to make available any of its Allocated Capacity for use by other Carriers on any commercial basis without any restrictions.   12.23 Guidelines for use of the IRU Capacity and Terms and Conditions of the IRU agreement shall be developed by the I&ASC and approved by a vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B. The NA shall be authorized to execute IRU agreements for one or more whole MIUs with APCN 2 IRU Capacity purchasers on behalf of the Parties to this Agreement. No provisions of the IRU agreement shall override the provisions of this Agreement.   12.24 Schedules B, C, and D shall be modified by the NA, as appropriate, to reflect any revised ownership of capacity or sales of IRU Capacity pursuant to this Paragraph 12.   12.25 The Management Committee may authorize use of the Unallocated Capacity for restoration of telecommunications services and other purposes. The terms and conditions of such use shall be determined by the Management Committee based, in part, on terms to be agreed to by the relevant Terminal Parties of the APCN 2, in recognition of the technical and operational impact on the Terminal Station operations. Parties will receive revenues in accordance with Schedule C.   12.26 The communications capability of any capacity may be optimized by the Parties to whom such capacity is allocated 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, impairment, or degradation to, the use of any other capacity in the APCN 2 or prevent the use of similar equipment by other Parties. A Party to whom capacity is allocated shall permit the use of such equipment by a Carrier to which such Party has   27





  made available the use of any such capacity, provided that such Carrier agrees that its use of the equipment will satisfy the conditions set forth in this Subparagraph 12.26.   12.27 A Party may sell capacity in fascicles smaller than a STM-1 in the APCN 2 at any time on any basis other than by transfer of ownership. The APCN 2 shall not be responsible for aggregating such capacity to the STM-1 level.   13. EXPANSION OF EQUIPPED CAPACITY   13.1 Any upgrade of Equipped Capacity of APCN 2, including any costs, financial adjustments and allocation of capacity associated with such upgrade, shall be approved by vote of members of the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B.   13.2 All Parties shall have the might to a pro-rata share of the upgrade capacity in accordance with Schedule C. However, no Party shall be forced to participate in such an upgrade. Parties not   14. INCREASE OR DECREASE OF DESIGN CAPACITY   14.1 In the event that the Initial Parties consider that it is beneficial to increase the Design Capacity of APCN 2, a Design Capacity expansion, including any costs, financial adjustments and allocation of capacity associated with such upgrade, shall be decided by the Management Committee representing at least two-thirds (66.67%) of the total voting interests as specified in Schedule B. However, no Party shall be forced to participate in such an upgrade, in the event that incremental funding is required to execute such an upgrade. Schedules B and C shall be appropriately modified to reflect the revisions associated with such increase of Design Capacity.   14.2 In the event that the capacity which APCN 2 or any Segment thereof is capable of providing is reduced below the capacity required to support the Allocated Capacity on its existing or planned routings as a result of physical deterioration, or for other reasons beyond the control of the Parties, the Management Committee shall initiate a review of the capacity routings, in order to support the rerouting of such Allocated Capacity.   14.3 In the event that the capacity which APCN 2 or any Segment thereof is capable of providing is lower than the capacity needed to support the routing of circuits assigned in APCN 2, the Allocated Capacity of the Parties may be reduced or changed as necessary and agreed by the Parties affected, and financial adjustments shall be made among the Parties, as necessary, on the terms and conditions to be agreed by the Management Committee. The Schedules shall be modified, as appropriate, to reflect the revised Allocated Capacity associated with such decrease of the Design Capacity.   28





  15. OBLIGATION TO PROVIDE TRANSITING FACILITIES TO EXTEND APCN2 CAPACITY TO EXTEND APCN 2 CAPACITY   15.1 The Terminal Parties shall use all reasonable efforts to provide and maintain or cause to be provided and maintained in working order for the duration of this Agreement, the necessary transit facilities within their respective Countries as may be reasonably required for extending capacity in the APCN 2 so as to provide connections to the other international cables' transmission facilities.   15.2 The facilities provided pursuant to Subparagraph 15.1 shall be suitable for extending capacity in the APCN 2 of all payload types as defined in Subparagraph 15.3 and shall be furnished and maintained on terms and conditions which shall be no less favorable than those granted to another Carrier for transmission facilities of similar type and quantity transiting the location involved. Such terms and conditions shall not be inconsistent with applicable governmental regulations in the Countries in which the facilities are located.   15.3 As required the Terminal Parties shall support payloads of STM-l, STM-4, STM-l6 and STM-64.   16. OBLIGATION TO CONNECT THE APCN 2 WITH INLAND SYSTEMS   16.1 The Parties shall, at their own expense, on or before the RFS Date, do or cause to be done, all such acts and things as may be necessary within its operating Country to provide and maintain throughout the period of this Agreement suitable connection of capacity from APCN 2 with appropriate inland communications facilities in its operating Country.   16.2 The Terminal Parties will provide connection to APCN 2 to other Carriers within their Countries on terms and conditions negotiated and agreed by the parties concerned.   17. DIRECT ACCESS TO NETWORK INTERFACE AND EQUAL ACCESS TO TERMINAL STATION   17.1 The Terminal Parties agree to confer the right of Direct Access at the Network Interface to each Party and all other Carriers that have received the Right of Use pursuant to Paragraph 12. The connection to the Network Interface at specific Terminal Stations shall be provided at a reasonable cost in accordance with the physical, engineering and any locally applicable arrangements between the Carriers accessing the Network Interface and the respective Terminal Parties at the Terminal Station.   17.2 Upon request by the Parties or the other Carriers, the Terminal Party shall enter into negotiation in good faith with these parties to agree the above arrangements in a timely manner. Any arrangements agreed upon shall be reasonable and non-discriminatory.   29





  17.3 The physical and engineering arrangements to be negotiated shall include all reasonable arrangements such as mid-span interconnection, equipment co-location (whether physical or virtual), or the sharing of Direct Access facilities by one or more Carriers in accordance with applicable commercial arrangements to be negotiated between the Terminal Party and the Carriers concerned.   17.4 The Terminal Parties shall not and hereby pledge not to impede or cause to impede any qualified Carriers in exercising their right of Direct Access hereby conferred, including but not limited to the negotiation between the non-Terminal Parties and Carriers for their own facilities to access their Allocated Capacity including for purpose of providing backhaul and transiting facilities.   18. DURATION OF AGREEMENT AND REALIZATION OF ASSETS   18.1 This Agreement shall become effective on the date and year first above written and shall continue in operation for at least an initial period of twenty-five (25) years following the RFS Date (hereinafter referred to as initial Period) and shall be terminable thereafter by agreement of the Parties. However, any Party may terminate its participation in this Agreement at the end of the Initial Period or any time thereafter by giving not less than one (1) year's prior notice thereof, in writing, to the other Parties.   18.2 This Agreement may be terminated at any time during the Initial Period by agreement in writing of all the Parties. If unanimous agreement cannot be reached between all the Parties for the retirement of APCN 2 during its specified useful life, this subject matter shall be referred to the Management Committee for resolution in accordance with paragraph 3 but in this case a ninety percent (90%) majority of the total voting interests as specified in Schedule B is required.   18.3 After the Initial Period of twenty-five (25) years, decommissioning can be implemented by agreement of a number of Parties representing at least two-thirds (66.67%) of the voting interests specified in Schedule B.   18.4 If a Terminal Party terminates its participation in this Agreement pursuant to Subparagraph 18.1 of this Agreement after the Initial Period of twenty-five (25) years, the remaining Parties and the said Terminal Party will negotiate a reasonable agreement in order to ensure the continuous operation of the said Terminal Party's Terminal Station after the Initial Period.   18.5 Upon the effective date of termination of participation of a Party, Schedules of this Agreement shall be appropriately modified. The remaining Parties to this Agreement shall assume the obligations, capital, operation, and maintenance interests of the Party terminating its participation in proportion to their interests assigned immediately preceding such effective date of termination, except for the continuing rights and obligations of the terminating Party as specified in Subparagraph 18.7 of this Agreement.   30





  No credit for capital costs will be made to a Party that terminates its participation in accordance with Subparagraph 18.1.   18.6 Upon decommissioning of the APCN 2, the Parties shall use all reasonable efforts to liquidate Segment S1, S2, S3, S4, S5, S6, S7, and S8 of the APCN 2, within one (1) year, by sale or other disposition between the Parties or any of them or by sale to other entities or persons; but no sale or disposition shall be effected except by agreement between or among the Parties to this Agreement at the time of decommissioning. In the event agreement cannot be reached, the decision will be carried on the basis of a simple majority vote of the total voting interests as specified in Schedule B. The net proceeds, or costs of decommissioning, removal, every sale or other disposition shall be divided between or among the Parties to this Agreement who have or were deemed to have interests in the subject thereof, in the proportions in which such Parties, interests are specified in Schedule B immediately preceding the time any Party terminates its participation in this Agreement. The Parties shall execute such documents and take such action as may be necessary to effectuate any sale or other disposition made pursuant to this Paragraph 18.   18.7 Unless the Management Committee shall otherwise determine, a Party's termination of its participation in this Agreement or the termination of this Agreement, pursuant to Subparagraph 18.1, shall not relieve that Party or the Parties hereto from any liabilities arising from events occurring before a Party's termination on account of claims made by third parties in respect of such facilities or any part thereof and damages or compensation payable on account of such claims, or obligations which may arise in relation to the APCN 2 due to any law, order or regulation made by any government or supranational legal authority pursuant to any international convention, treaty or agreement. Any such liabilities or costs incurred or benefits accruing in satisfying such obligations shall be divided among the Parties hereto in the proportions in which such Parties, interests are specified in Schedule B immediately preceding the time a Party terminates its participation in this Agreement or this Agreement is terminated pursuant to Subparagraph 18.1, whichever occurs first.   19. OBTAINING OF APPROVALS   19.1 The performance of this Agreement by the Terminal Parties is contingent upon the obtaining and continuance of such governmental approvals, consents, authorizations, licenses, and permits as may be required or be deemed necessary by the Terminal Parties and as may be satisfactory to them, and the Terminal Parties shall use all reasonable efforts to obtain and to have continued in effect such approvals, consents, authorizations, licenses, and permits.   19.2 The Terminal Parties shall make all reasonable efforts to handle matters relating to the obtaining and continuance of such governmental approvals, consents, authorizations, licenses, and permits for the Landing, construction and operation of APCN 2 in their respective Countries.   31





  19.3 In the event that any Terminal Party fails, or is likely to fail, to obtain such approvals, consents, authorizations, licenses or permits, that Terminal Party shall give immediate notice to the Management Committee for it to take appropriate action pursuant to this Agreement.   20. PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS   In the event that the Management Committee decides to go to arbitration in accordance with Paragraph 27, each Party specifically reserves, and is granted by each of the other Parties, in any action, arbitration or other proceeding between or among the Parties or any of them in a country other than that Party's own country, the right of privileges, in accordance with the laws of the country in which the arbitration or litigation takes place with respect to any documents or communications which are material and pertinent to the subject matter of the action, arbitration or proceeding in which privilege could be claimed or asserted by that Party in accordance with those laws.   21. RELATIONSHIP OF PARTIES   21.1 The relationship among the Parties shall not be that of partners, and nothing herein contained shall be deemed to constitute a partnership among them. The common enterprise between and among the Parties shall be limited to the express provisions of this Agreement. The liability of the Parties shall be several and not joint or collective.   21.2 Each Patty agrees to indemnify each of the other Parties in respect of all costs, expenses, damages and demands, arising out of or in connection with any claim against, or liability of, the latter as an owner of APCN 2 where such claim is made by, or the liability is to, any third party not being a Party hereto and arises out of or in connection with APCN 2 provided that no indemnifying Party shall be obligated to contribute more than its share of liability as per Schedule B. Subject to there being no conflict of interest, each Party so indemnifying shall have the right, at its sole cost and expense, to observe but not directly participate in any discussions, meetings or conferences held prior to or during any settlement or legal proceedings resulting from any such claim or liability.   21.3 Under no circumstances shall any Party be liable to any other Party in contract, tort, (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, property, traffic, business or anticipated savings, or for any indirect or consequential loss or damage in connection with the operation of this Agreement howsoever caused. Such causes shall include (but not be limited to):   (i) any delay in the provision of the APCN 2; (ii) any damage to, breakdown in or failure of the APCN 2; and (iii) any interruption of service,   32





  whatever may be the reason or duration for such loss, damage or delay and for however long it shall continue.   22. ASSIGNMENT OF RIGHTS AND OBLIGATIONS   22.1 Except as otherwise provided in Paragraph 12 and Subparagraphs 22.2, 22.3, 22.4 and 22.5, during the term of this Agreement, no Party may assign, sell, transfer or dispose of the whole or any parts of its rights or obligations under this Agreement   22.2 A Party may at any time, with the prior written consent of the Management Committee, assign, sell or transfer the whole of its rights and obligations under this Agreement. The Management Committee must not unreasonably withhold or delay its approval.   22.3 A Party may at any time assign, sell or transfer the whole of' its rights and obligations under this Agreement to:   (a) a successor of that Party; (b) a Parent Company of that Party; (e) a Subsidiary or Affiliate of that Party; and (d) another Subsidiary or Affiliate of that Party's Parent Company.   22.4 A Party (hereafter Assignor) may assign, sell or transfer a portion of its rights under this Agreement to a Parent Company, its Subsidiary, and/or the Subsidiary of the Party's Parent Company (hereafter Assignee). Such partial assignment shall be allowed only once to any such Assignee, and shall not negate any of the obligations of the Assignor. If the Assignor is an Initial Party, then the Initial Party status of the Assignor shall be maintained and the Assignor's voting rights shall be shared with such Assignee. The relevant Schedules to this Agreement shall be revised to reflect each such partial assignment permitted hereunder, showing the Assignee as a Party. No subsequent assignment shall be effected by the Assignee except as provided in Subparagraph 22.3(a).   22.5 Without limiting the applicability of Subparagraph 22.4, a Party may assign its rights, title and interests in any portion of APCN 2 within the territorial limits of any Country (both under the current and any future configuration) to a Subsidiary, Parent Company or a Subsidiary of a Parent Company of that Party only if:   a) the Assignee shall own and be responsible for the capital, operations and maintenance costs listed against the Party for that portion of APCN 2 within the territorial limits of any Country (both under the current and future configuration); the Party shall own and be responsible for the capital, operating and maintenance costs listed against the Party for the remainder of APCN 2; and   b) the Assignee will have no tights and obligations independent from the rights and obligations of the Party in respect of the assigned portion of the APCN 2   33





  The aforementioned provision shall not be used to circumvent the provisions under Paragraph 12.   22.6 A Party exercising its rights under Subparagraphs 22.2, 22.3, 22.4 or 22.5 must give notice in writing to all other Parties in a timely manner.   23. DEFAULT   23.1 If any Party fails to make any payment required by this Agreement on the date when it is due and such default continues for a period of at least one (1) month after the payment due date, the CBP shall notify the billed Party and also the Management Committee in writing of the status of the matter and will request the reclamation of capacity, as provided for in this Paragraph 23, if full payment is not received within two (2) months of such notification. If full payment is not received within such specified period, the Management Committee may reclaim the Capacity in the APCN 2 allocated to the billed Party.   23.2 The Management Committee shall consider any extenuating circumstances not within the specific control of the billed Party in determining whether or not to reclaim the capacity assigned to such billed Party. If the Management Committee nevertheless reclaims any capacity in the APCN 2 assigned to such defaulting Party, the defaulting Party shall not be entitled to any payment or credit for the reclaimed capacity. The Management Committee shall determine arrangements for disposition of any reclaimed capacity. All rights of a defaulting Party under this Agreement shall terminate as of the time all its capacity in the APCN 2 is reclaimed by the Management Committee; and concurrent with such reclamation of capacity, the defaulting Party will no longer be deemed to be a Party to this Agreement. Such reclamation shall not relieve the defaulting Party from its obligations under this Agreement, including but not limited to the payment of its unpaid accounts, which have been incurred prior to the actual reclamation. The defaulting Party is not entitled to any reimbursement of any amounts it had paid under this Agreement. In such circumstances, the Schedules shall be revised to reflect the default of a Party and the reallocation of interests pursuant to the arrangements determined by the Management Committee.   23.3 Notwithstanding Subparagraph 23.2, reclamation of a Terminal Party's capacity will not release the Terminal Party from providing, operating and maintaining its respective Terminal Station until a reasonable agreement is negotiated in order to ensure the continuous operation of the said Terminal Party's Terminal Station after reclamation of its capacity.   24. WAIVER   The failure of any Party, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall not thereafter be   34





  construed as a waiver of any breach or default, or as a waiver of any such provision, right, or privilege hereunder.   25. COMPLIANCE WITH LAW   In the performance of their obligations hereunder, the Parties agree to comply with all applicable laws of all Countries having jurisdiction over the activities performed under or stipulated by this Agreement.   26. RATIFICATION OF DECISIONS AND ACTIONS   Each Party to this Agreement does hereby unconditionally ratify and accept as binding on it, its successors, permitted assigns or trustees all decisions and actions theretofore taken directly or indirectly by any other Party or Parties or any committee or Subcommittee or group pursuant to and in accordance with this Agreement.   27. RESOLUTION OF DISPUTES   27.1 If a dispute should arise under this Agreement between or among the Parties they shall make every reasonable effort to resolve such dispute. However, in the event that they are unable to resolve such dispute, the matter shall be referred to the Management Committee which shall either resolve the matter or determine the method, such as arbitration, by which the matter should be resolved. This procedure shall be the sole and exclusive remedy for any dispute which may arise under this Agreement between or among the Parties. The performance of this Agreement by the Parties shall continue during the resolution of any dispute.   27.2 If any difference shall arise between or among the Parties or any of them in respect of the interpretation or effect of this Agreement or any part or provision thereof or their rights and obligations thereunder, and by reasons thereof there shall arise the need to decide the question by what municipal or national law this Agreement or any part or provision thereof is governed, the following facts shall be excluded from consideration, namely that this Agreement was made in a particular country and that it may appear by reason of its form, style, language or otherwise to have been drawn preponderantly with reference to a particular system of municipal or national law; the intention of the Parties being that such facts shall be regarded by the Parties and in all courts and tribunals wherever situated as irrelevant to the question aforesaid and to the decision thereof.   28. SUPPLEMENTS AND AMENDMENTS TO THIS AGREEMENT   28.1 This Agreement shall not be amended, supplemented, or modified unless the Parties representing at least ninety percent (90%) of the voting interests specified in Schedule B   35





  have indicated their approval in writing. The Chairman of the Management Committee must provide advance written notice, of at least thirty (30) days, to all Parties of the proposed amendment, supplement or modification and shall notify all Parties in writing once the required level of approval has been obtained and at least ten (10) days prior to execution of the amendatory or supplementary agreement   28.2 Each Party except SingTel and PLDT authorizes the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1. SingTel and PLDT shall provide the Power of Attorney to the Chairman of the Management Committee to execute on its behalf any amendatory or supplementary agreement implementing an amendment, supplement or modification approved under Subparagraph 28.1 in a timely manner.   28.3 Subparagraphs 28.1 and 28.2 shall not apply to any Schedule or Annex modified in accordance with other provisions of this Agreement, and any Schedule or Annex so modified shall be deemed to be part of this Agreement in substitution for the immediately preceding version of that Schedule or Annex.   29. EXECUTION OF AGREEMENT   29.1 This Agreement and any Supplements and Amendments hereto shall be executed in one (1) original in the English language. Identical counterparts may be executed and when so executed shall be considered as an original. Such counterparts shall together, as well as separately constitute one and the same instrument.   29.2 The NA shall be the custodian of the original and will provide certified copies to Parties to this Agreement.   30. SUCCESSORS BOUND   This Agreement shall be binding on the Parties, their successors, and permitted assigns.   31. CONFIDENTIALITY   31.1 All data and information that is acquired or received by any Party in connection with the APCN 2 in anticipation of or under this Agreement shall be held confidential and shall not be divulged in any way to any third party, without the prior approval of the Management Committee.   31.2 Notwithstanding Subparagraph 31.1, any Party may, without such approval, disclose such data and information to:   36





  (i) the extent required by any applicable laws, or the requirements of any recognized stock exchange in compliance with its rules and regulations or in the case of a Party wholly owned by a sovereign government, by the rules of governance of the Party; or   (ii) any government agency lawfully requesting such information; or   (iii) any Court of competent jurisdiction acting in pursuance of its powers.   31.3 Any Party may disclose such data and information to such persons as may be necessary in connection with the conduct of the operations of the APCN 2 upon obtaining a similar undertaking of confidentiality from such persons to whom such information may be disclosed.   31.4 Each Party shall remain bound by the provisions of this Paragraph 31 during the period of this Agreement and for the period of five (5) years following termination of this Agreement.   32. SETTLEMENT OF CLAIMS BY PARTIES   32.1 If any Party is obliged by a final judgment of a competent tribunal or under a settlement approved by the Management Committee, to discharge any claim by a third party, including all costs and expenses associated therewith, resulting from the implementation of this Agreement, the Party which has discharged the claim shall be entitled to receive from the other Parties reimbursement in the proportions as set out in Schedule B.   32.2 If any claim is brought against a Party in connection with the APCN 2, the Party shall, as a condition of reimbursement under Subparagraph 32.1, give written notice thereof to the Management Committee as soon as practicable and shall not admit liability nor settle, adjust or compromise the claim without the approval of the Management Committee.   32.3 Before any Party brings a claim against any third party in respect of loss or damage to any part of the APCN 2, it shall first consult with the Management Committee and shall not settle, adjust, or compromise such a claim without the approval of the Management Committee.   32.4 Notwithstanding Subparagraphs 32.2 and 32.3, if the Management Committee issues any directions to a Party relating to the conduct of any such claim, then that Party must comply with those directions.   32.5 Costs, expenses, damages, or compensation payable to the Parties on account of claims made against third parties shall be shared by the Parties in the proportions as set out in Schedule B.   37





  32.6 Upon termination of this Agreement pursuant to Paragraph l8, the Parties shall not be relieved from any liabilities, costs, damages or obligations which may arise in connection with claims made by third parties with respect to the APCN 2, or any part thereof, or which may arise in relation to the APCN 2 due to any law, order or regulation made by any government or international convention, treaty or agreement. Any such liabilities, costs, damages or obligations shall be divided among the Parties in the proportions as set out in Schedule B.   33. FORCE MAJEURE   If any Party cannot fulfill its obligations in this Agreement due to an event beyond its reasonable control, including, but not limited to lighting, flood, exceptionally severe weather, fire or explosion, civil disorder, war or military operations, national or local emergency,   35.2  This Agreement supersedes the MOU. Any liabilities which any Party has incurred arising out of or by virtue of the MOU shall be dealt with in accordance with the provisions of this Agreement.   38





  TESTIMONIUM   IN WITNESS WHEREOF, the Parties hereto have severally subscribed these presents or caused them to be subscribed in their names and on their behalf by their respective officers thereunto duly authorized.     For and on behalf of Advantage Telecommunications Ltd.         By:

        For and on behalf of Cable & Wireless Global Network Limited         By:

        For and on behalf of Cable & Wireless HKT international Limited         By:

        For and on behalf of China Telecom         By:

  39





  For and on behalf of China United Telecommunications Corporation         By:

        For and on behalf of Chunghwa Telecom Co., Ltd.,         By:

        For and on behalf of Concert Global Network Services, Ltd.         By:

        For and on behalf of Global One Communications Network, Inc.



        By:

        For and on behalf of Japan Telecom Co., Ltd.



        By:

  40





  For and on behalf of KDD Corporation



        By:

        For and on behalf of Korea Telecom



        By:

        For and on behalf of KPN Telecom B.V.



        By:

        For and on behalf of Layer 2 Communications Group Ltd.



        By:

        For and on behalf of MCI International Telecommunications. Inc.



        By:

  41





  For and on behalf of Metromedia Fiber Network Services, Inc.



        By:

        For and on behalf of New Century InfoComm Ltd., Preparatory Office         By:

        For and on behalf of NTT Communications Corporation



        By:

        For and on behalf of Onelink Cable Network Limited



        By:

        By:

        For and .on behalf of Philippine Long Distance Telephone Company         By:

  42





  For and on behalf of Singapore Telecommunications Limited



        By:

        For and on behalf of StarHub Pte Ltd



        By:

        For and on behalf of Taiwan Fixed Network Co., Ltd. Preparatory Office



        By:

        For and on behalf of Teleglobe USA Inc.



        By:

        For and on behalf of Telekom Malaysia Berhad (128740-P)



        By:

  43





  For and on behalf of Telstra Global Networks Limited         By:

        For and on behalf of Williams Communications, Inc.,         By:

        For and on behalf of APT Satellite Telecommunications Limited         By:

        For and on behalf of Bayan Telecommunications, Inc.



        By:

  44





  For and on behalf of China Netcom Corporation Ltd.



        By:

        For and on behalf of The Communications Authority of Thailand



        By:

        For and on behalf of CTI International Limited



        By:

        For and on behalf of Dacom Corporation



        By:

        For and on behalf of edge2net Inc.



        By:

  45





  For and on behalf of Eastern Telecommunications Philippines, Incorporated         By:

        For and on behalf of Global Access Ltd.



        By:

        For and on behalf of Globe Telecom, Inc.



        By:

        For and on behalf of GNG Networks. Inc.



        By:

        For and on behalf of GTE Intelligent Network Service Incorporated         By:

  46





  For and on behalf of PT Indosat (Persero) Tbk



        By:

        For and on behalf of Maxis International Sdn. Bhd



        By:

        For and on behalf of New World Telephone Limited



        By:

        For and on behalf of NTT Com Asia Ltd.



        By:

        For and on behalf of Onse Telecom Corporation



        By:

  47





  For and on behalf of Telia AB (publ)



        By:

        For and on behalf of TT dotCom Sdn Bhd



        By:

  48

A:
Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
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