Digicel (Cayman) Limited Standard Wayleave Agreement
(A) The Owner is the owner of the Property.
(B) The Tenant is tenant of part of the Property.
(C) Digicel (Cayman) Limited (“Operator”) has requested the right to install, use, inspect, maintain, alter, repair, dismantle and remove the Apparatus at the Property.
(D) The Operator and Owner have executed a document entitled Authorisation to install Digicel Fibre Network on the common areas of the premises of Multi-Dwelling Unit Complex/Development (“Authorisation”), which refers to and binds the parties to the terms as contained in this Standard Wayleave Agreement (“Agreement”).
(E) The Owner acknowledges and agrees that by executing the Authorisation it has satisfied itself of the terms and conditions contained in this Agreement.
(F) The Owner has agreed to grant these rights on the terms and conditions in this Agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Apparatus: the equipment to be installed along the Wayleave Route, which shall include all equipment, machines, conduits, which shall be utilised by the Operator for the provision of telecommunications services on the Property, including fixed line, broadband services and television services.
Business Day: a day other than a Saturday, Sunday, or a public holiday in Cayman Islands when banks are open for business.
Commencement Date: the date the Installation Works begin.
Competent Authority: any statutory undertaker or any statutory public local or other authority or regulatory body or any court of law or government department or any of them or any of their duly authorised officers.
Completion: completion of the Installation Works enabling the Apparatus to be used.
Designated Hours: 7am – 6pm on working days and 8am – 5pm on weekends, unless otherwise agreed in writing between the parties.
Installation Works: works to be carried out on, over or under the Property to install the Apparatus along the Wayleave Route.
Necessary Consents: all consents, licences, permissions, certificates, authorisations and approvals whether of a public or private nature which shall be required by any Competent Authority for the installation, use, inspection, maintenance, alteration, repair, renewal, connection to, replacement, dismantling and removal of the Apparatus.
Operator's Obligations: the obligations set out in Schedule 2.
Operator's Rights: the rights set out in Schedule 1.
Owner's Obligations: the obligations set out in Schedule 3.
Owner's Rights: the rights set out in Schedule 4.
Plan: the plan (if any) attached to this Agreement.
Property: all the property at the address, details of, which are set out in the Authorisation, and registered at the Cayman Land Registry.
Services: the provision of telecommunications services on the Property by the Operator, including fixed line, broadband services and television services to the Tenant.
Third Party Insurance: public liability insurance with reputable insurers.
Wayleave Route: the route over the Property agreed between the parties at the time of execution of the Authorisation.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 Except where a contrary intention appears, references to clauses and Schedules are to the clauses and Schedules of this agreement; reference to paragraphs are to paragraphs of the relevant Schedule.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to laws in general is a reference to all local, national and directly applicable supra-national laws as amended, extended or re-enacted from time to time and shall include all subordinate laws made from time to time under them and all orders, notices, codes of practice and guidance made under them.
1.9 Unless otherwise specified, a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision and all orders, notices, codes of practice and guidance made under it.
1.10 A reference to writing or written includes faxes but not email.
1.11 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done and an obligation to use best endeavours to prevent that thing being done by another person.
1.12 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.1 In consideration of the Operator's Obligations the Owner grants to the Operator the Operator's Rights.
2.2 The Operator's Rights are granted:
(a) subject to the Owner's Rights and any other rights of the Owner in relation to the Property, which the Owner shall notify Operator of before execution of this Agreement.
(b) in common with any other persons lawfully entitled to exercise similar rights to the Operator's Rights or the Owner's Rights in relation to the Property.
3. Operator's Obligations
The Operator agrees to carry out the Operator's Obligations.
4. Owner's Obligations
The Owner agrees to perform the Owner's Obligations.
5. Reservation of rights
6.1 This Agreement shall end on the earliest of:
(a) the expiry of not less than 180 days' notice given by the Owner to the Operator on breach of any of the Operator's Obligations contained in this Agreement, provided the Owner, before issuing the 180 days’ notice, gives the Operator a notice to remedy the breach within 90 days’ from the date of the notice to remedy, or such extended time as agreed between the parties; or
(b) the expiry of not less than 3 months' notice given by the Operator to the Owner, where such termination may be given at any time for convenience by the Operator.
6.2 Termination of this Agreement shall not affect the rights of either party in connection with any breach of any obligation under this Agreement, which existed at or before the date of termination.
6.3 The Operator shall dismantle and remove the Apparatus and all works ancillary to it in accordance with the Operators Obligations either:
(a) within a reasonable time following termination in accordance with clause 6.1(a); or
(b) prior to the expiry of a notice served pursuant to clause 6.1(b).
If further time is required by the Operator, the Owner shall allow such further time.
6.4 For the avoidance of doubt, the termination provisions contained in this clause 6 do not affect any statutory rights of the Operator relating to the exercise of the Operator's Rights.
7.1 The Operator shall maintain a Third Party Insurance and the Operator shall ensure that:
(a) all current premiums are paid and up to date;
(b) the Operator complies in all respects with the terms of such insurance and does not allow the Third Party Insurance to lapse.
The Parties shall indemnify each other, and keep each other indemnified against all liabilities, costs, expenses, damages and losses arising from:
(a) the exercise of either Parties Rights;
(b) any breach of any of the Parties Obligations;
by either Party or by any employee, contractor, agent or invitee of the Parties, or by any other person who is allowed or permitted by the Parties to exercise the Parties Rights.
9. Limitation of Owner's liability
9.1 Subject to clause 9.2, the Owner is not liable for:
(a) the death of, or injury to the Operator, its employees, contractors, agents or invitees to the Property; or
(b) damage to any property of the Operator or that of the Operator's employees, contractors, agents or invitees to the Property, where the same is not caused through the direct negligence of the Owner or its employees, contactors, agents or invitees to the Property where Operator’s Apparatus may be; or
(c) all liabilities, costs, expenses, damages and losses incurred by the Operator or the Operator's employees, contractors, agents or invitees to the Property in the exercise or purported exercise of Operator’s Rights.
9.2 Nothing in clause 9.1 shall limit or exclude the Owner's liability for:
(a) death or personal injury or damage to property caused by negligence on the part of the Owner or its employees or agents; or
(b) any matter in respect of which it would be unlawful for the Owner to exclude or restrict liability.
10. Tenant's consent
The Tenant consents to the rights conferred on the Operator by the terms of this Agreement, and it shall be the Owner’s obligation to ensure that it procures such consent ahead of the Commencement Date, and the Owner must take into account any reasonable representations made by the Tenant in relation to the operation of this Agreement.
11.1 Any notice, or other communication, given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service to the relevant party, details of, which are contained in the Authorisation, or as otherwise specified by the relevant party by notice in writing to each other party.
11.2 Any notice, or other communication, given in accordance with clause 11.1 will be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice or other communication is left at the proper address; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting.
11.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Each party shall be responsible to pay for its own costs in relation to this Agreement, including all costs, fees, charges and expenses and disbursements incurred by either Party, and by their professional advisors, in relation to the negotiation and completion of this Agreement.
13. Licence only
The parties acknowledge that:
13.1 no relationship of landlord and tenant is created between the Owner and the Operator by this Agreement;
13.2 the Owner retains control, possession and management of the Property and the Operator has no right to exclusive possession nor to exclude the Owner from the Property; and
13.3 the Operator's Rights granted by this Agreement may be assignable, and the Operator's Rights may be exercised either by the Operator, or its employees, contractors, and its agents.
14. Rights of third parties
A person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement.
15. Governing law and jurisdiction
15.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Cayman Islands.
15.2 The Parties irrevocably agree that the courts of Cayman Islands shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement, or its subject matter or formation (including non-contractual disputes or claims).
This Agreement takes effect on the date the Authorisation is executed by the Owner and Operator.
Schedule 1 The Operator's Rights
1. The rights, for the Operator and those authorised by it, at all times, to enter the Property with or without vehicles, plant and equipment to:
1.1 install the Apparatus over the Wayleave Route and make good the Property afterwards to use, inspect, maintain, alter, repair, renew, connect to, replace, dismantle and remove the Apparatus ensuring that on each occasion that the Property is reinstated, and otherwise left in a neat and tidy condition;
1.2 fell, trim or lop any trees, bushes and other vegetation on the Property, which obstruct or interfere with the exercise of the rights provided that the Operator removes from the Property all timber, wood and vegetation so cut and leaves the Property properly reinstated, and otherwise in a neat and tidy condition.
1.3 Enter the Property with or without vehicles, plant and equipment to obtain access to any adjoining land over, which the Operator has similar rights.
Schedule 2 Operator's Obligations
2. Statutory requirements
When exercising any and all of the Rights the Operator and its contractors, employees and others authorised by it will do so in a good, proper and workman ike manner and will comply with all applicable laws relating to the exercise of the Rights.
The Operator and its employees, contractors, agents and others authorised by it will not cause any wilful damage to the Property, or to any property of the owners or occupiers of the Property, and shall as soon as practicable make good any such wilful damage caused (including any damage caused due to the Installation Works) and reinstate the Property to a reasonable state.
The Operator and its employees, contractors, agents and others authorised by it will not cause any nuisance, annoyance or disturbance to the Owner or occupiers of the Property, or of any neighbouring land, or to any other person entitled to rights over the Property.
In exercising the Rights, the Operator and its employees, contractors, agents and others authorised by it shall take all reasonable precautions to avoid any interference with the use of any road, footpath, sewer, drain, watercourse or other services that may be affected by the Installation Works or that the Wayleave Route passes over.
The Operator shall ensure that:
6.1 All proper safety precautions are taken during the Installation Works and thereafter that safety devices in, on or relating to the Apparatus function properly at all times.
6.2 An appropriately qualified and experienced person regularly inspects the Apparatus at proper intervals and that any recommendations to carry out any works or remedy any defects that are necessary to put and keep the Apparatus safe and in good condition are carried out immediately.
Schedule 3 Owner's Obligations
1. Interference with Apparatus
The Owner shall not do anything or allow anything to be done on the Property that may interfere with or damage the Apparatus or interfere with, impede or obstruct the Operator’s access to the Apparatus.
2. Prohibited activity
The Owner shall:
2.1 not erect any new building or structure or plant on or beneath the Wayleave Route, nor within one metre of the Apparatus.
2.2 not raise the level of the surface, ground cover or composition of the ground beneath the Wayleave Route.
Schedule 4 Owner's Rights
The Owner reserves the following rights for itself, its successors in title and all other persons authorised by it to benefit from the same:
1. Right to repair the Property
The right to enter onto the Wayleave Route to repair, maintain or replace any services, structures or facilities on any part of the Property, provided that in so doing the Owner will cause as little interference as is reasonably practicable to the exercise of the Rights by the Operator. The Owner, however, must provide the Operator with at least 72 hours’ notice before it enters onto the Wayleave Route, and must provide the Operator the opportunity to have its representative(s) to be present.
2. Right to build on the Property
Subject to the Owner's Obligation in paragraph 2 of Schedule 3, the right to use any part of the Property as the Owner thinks fit, or to build on or develop any part of the Property or any neighbouring land, provided that any such use or works do not interfere with, or obstruct, the exercise of the Rights by the Operator.