30 OCTOBER NEW ZEALAND GAZETTE 4121

24. OPERATIONAL LIAISON

24.1 The Service Operator and the Principal ROC shall participate in on-going consultation with respect to operation of this Agreement and apply their best endeavours to resolve any problems arising from such consultation or otherwise encountered in relation to this Agreement and in particular but without limiting the generality of the foregoing shall liaise on the following:

24.1.1 initial problems arising from the Connection of the Service Operator’s Network and each respective Telecom ROC’s Network for the period of 3 months from the later of the Commission Date and the Delayed Commission Date for that Telecom ROC, as the case may be;

24.1.2 the technical standards of telecommunication equipment of any third party service operator which is Connected to or intended to be Connected to the Service Operator’s Network;

24.1.3 software and hardware changes proposed for the Service Operator’s Equipment. In particular the Service Operator shall give notice to the Principal ROC of any change in the software generic and issue/version number installed in the Service Operator’s Network.

24.2 Telecom and the Service Operator shall co-operate to eliminate:

24.2.1 fraudulent use of the Service Operator’s Network Service by the Service Operator’s End Users and Service Operator’s Customers;

24.2.2 fraudulent use of any network service provided by Telecom Group to customers and end users of Telecom Group; insofar as such fraudulent use has arisen as a result of the Connection of each Telecom ROC’s Network to the Service Operator’s Network and the provision of each Telecom ROC’s Network Service to the Service Operator under this Agreement.

25. FORCE MAJEURE

25.1 Notwithstanding any other provisions of this Agreement but subject to the other provisions of this clause, if the Service Operator or a Telecom ROC fails to observe or perform any of the covenants conditions and agreements imposed upon it under this Agreement, and such failure shall have been occasioned by or in connection with or in consequence of Force Majeure such failure shall be deemed not to be a breach of such covenants conditions and agreements.

25.2 For the purposes of this Agreement, “Force Majeure” event means any act of God or act of nature, strike, lockout, work stoppage or other labour hindrance, confiscation or expropriation, embargo, public mains electrical supply failure, fire, flood, storm, explosion, nuclear accident, sabotage, revolution, riot, act of war whether declared or not, warlike operations, requirement or restriction of governmental authorities (but not including the events referred to in Clause 18.3), earthquake, slide, epidemic, quarantine restriction, or any other cause beyond the reasonable control of the Service Operator or a Telecom ROC, as the case may be, which prevents, hinders or interferes with the performance by the Service Operator or that Telecom ROC (as the case may be) of their obligations under this Agreement.

25.3 Neither the Service Operator nor a Telecom ROC shall be entitled to the benefit of the provisions of Clause 25.1 under any or all of the following circumstances:

25.3.1 to the extent that the failure was caused by the contributory negligence of the Service Operator or that Telecom ROC (as the case may be) claiming suspension;

25.3.2 as the case may be) or to the extent that the failure was caused by the Service Operator or that Telecom ROC (as the case may be) claiming suspension and such party has failed to remedy the event, and to resume the performance of such covenants or obligations, with reasonable dispatch;

25.3.3 if the failure was caused by lack of funds;

25.3.4 unless as soon as possible after the happening of the event relied upon or as soon as possible after determining that the event was in the nature of Force Majeure and would affect the claiming party’s ability to observe or perform any of its covenants conditions and agreements, the Service Operator or that Telecom ROC (as the case may be) claiming suspension shall have given the Principal ROC (in the case of the Service Operator) or the Service Operator (in the case of that Telecom ROC) notice to the effect that it is unable by reason of Force Majeure (the nature whereof shall be therein specified) to perform the particular covenants and obligations.

25.4 The party claiming suspension shall likewise give notice as soon as possible after the Force Majeure shall have been remedied, to the effect that the same has been remedied and that such party has resumed, or is then in a position to resume, the performance of such covenants conditions and agreements.

25.5 Notwithstanding anything to the contrary in this Clause 25 expressed or implied, the parties agree that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of the particular party involved therein and such party may make settlement thereof at such time and on such terms and conditions as it may deem to be advisable and no delay in making such settlement shall deprive such party of the benefit of Clause 25.1 hereof.

25.6 The Service Operator shall have the right to terminate this Agreement upon 60 days’ prior notice served on the Principal ROC if the Service Operator is unable to observe or perform any of its obligations under this Agreement due to any Force Majeure and such inability continues for a continuous period of 6 months PROVIDED THAT the Service Operator shall not be entitled to give such termination notice unless and until the Service Operator has negotiated or endeavoured to negotiate in good faith with the Principal ROC to remedy the Force Majeure relied upon or to amend the terms of this Agreement to enable this Agreement to remain in full force and effect notwithstanding such inability to observe or perform as aforesaid. A Principal ROC shall have the right to terminate this Agreement as far as it relates to a Telecom ROC upon 60 days’ prior notice served on the Service Operator, if that Telecom ROC is unable to observe or perform any of its obligations under this Agreement due to any Force Majeure and such inability continues for a continuous period of 6 months PROVIDED THAT the Principal ROC shall not be entitled to give such termination notice unless and until the Principal ROC has negotiated or endeavoured to negotiate in good faith with the Service Operator to remedy the Force Majeure relied upon or to amend the terms of this Agreement to enable this Agreement to remain in full force and effect notwithstanding such inability to observe or perform as aforesaid.

25.7 In the event of Partial Termination of this Agreement insofar as it relates to a Telecom ROC under Clause 25.6, this Agreement shall forthwith be construed as if the reference to the Telecom ROC specified in the Service Operator’s notice