Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
847
Administrative Motion to File Under Seal Samsung's Opposition to Apple's Motion for Partial Summary Judgment filed by Samsung Electronics Co. Ltd.. (Attachments: #1 Trac Declaration in Support of Motion to File Under Seal, #2 Samsung's Opposition to Apple's Motion for Partial Summary Judgment, #3 Hecht Declaration in Support of Opposition to Motion for Partial Summary Judgment, #4 Ex A, #5 Ex B1, #6 Ex B2, #7 Ex C1, #8 Ex C2, #9 Ex D, #10 Ex E, #11 Ex F1, #12 Ex F2, #13 Ex F3, #14 Ex F4, #15 Ex G, #16 Ex H, #17 Ex I, #18 Ex J1, #19 Ex J2, #20 Ex J3, #21 Ex J4, #22 Ex J5, #23 Ex J6, #24 Ex J7, #25 Ex J8, #26 Ex J9, #27 Ex J10, #28 Ex J11, #29 Ex K1, #30 Ex K2, #31 Ex K3, #32 Ex L, #33 Ex M, #34 Ex N, #35 Ex O1, #36 Ex O2, #37 Ex P1, #38 Ex P2, #39 Ex Q1, #40 Ex Q2, #41 Ex Q3, #42 Ex Q4, #43 Ex Q5, #44 Ex Q6, #45 Ex Q7, #46 Ex R, #47 Ex S1, #48 Ex S2, #49 Rosenbrock Declaration in Support of Opposition to Motion for Partial Summary Judgment, #50 Ex 1, #51 Ex 2, #52 Ex 3, #53 Ex 4, #54 Ex 5, #55 Ex 6, #56 Ex 7, #57 Ex 8, #58 Ex 9, #59 Ex 10, #60 Ex 11, #61 Ex 12, #62 Ex 13, #63 Ex 14, #64 Ex 15, #65 Ex 16, #66 Ex 17, #67 Ex 18, #68 Proposed Order Denying Apple's Motion for Summary Judgment, #69 Proposed Order Granting Samsung's Administrative Motion to File Under Seal)(Maroulis, Victoria) (Filed on 4/2/2012) Modified on 4/3/2012 Attachment #1 Trac Declaration placed under seal. Posting of attachments #16, 18, 19, 20 through 33, 37, 38, 47 and 48 are NOT in compliance with General Order 62 (dhm, COURT STAFF).
EXHIBIT 17
European Telecommunications Standards Institute
ETSI
12th Technical Assembly
Nice, 26 November 1991
ETSi/TA 12 (91) 3
Date:
October 1991
Source:
ETSI Director
Title:
Intellectual Property Policy and procedures
Agenda item:
2
Document for:
Discussion and Decision
D/504/Sl/KHR/jg
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Subject to Protective Order
S-ITC-003390831
Final Draft incorporating results of the TA June 1991
14.10.91
JAC04653
EUROPEAN TELECOMMUNICATIONS
STANDARDS INSTITUTE
(ETSI)
INTELLECTUAL PROPERTY POLICY
AND
PROCEDURES
Confidential Business Information,
Subject to Protective Order
S-ITC-003390832
JAC04653
EUROPEAN TELECOMMUNICATIONS STANDARDS INSTITUTE
(ETSI)
INTELLECTUAL PROPERTY POLICY AND PROCEDURES
INDEX
PAGE NUMBER
SECTION HEADING
Intellectval Property Policy
Part I - Objectives, Licensing and IPRs
Introduction
Policy Objectives
IPR Undertakings
Confidentiality
Ownership of IPRs
Licensing Provisions for Standards Related Licences
Reproduction of Standards Documentation
Law and Regulations
Policy Decisions
Violation of Policy
Duration
Development of Policy
i
i
i
i
ii
ii
ii
ii
ii
ii
iii
111
iii
Part II - Procedures and Procurement
Total Royalty Rates
Procedures ~:~7( ~ .’~.~D:!~~:,.~ .,~:.’_~
Risk Sharing
Categerisatien of Standards
............
d,’¢,/~. ~ ,...~, .~..,~ ,"~’~-~.//~
iv
iv
iv
iv
ETSI IPR Undertakin~
Appendix A
Appendix A - Part I - Principle Licensing, Provisions and Disclosure of" IPRs
Definitions
Licence Grant
Scope of Licences
Right to Withhold Licences
Reciprocity of Grant
Disclosure of IPRs and Licensing Terms
Confidential Business Information,
Subject to Protective Order
2
2
2
3
3
4
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SECTION HEADING
PAGE NUMBER
Appendix A - Part II - Standards Documentation
Assignment of Literary Copyright
Licences Under Literary Copyright
Author’s Rights
5
5
5
Appendix A - Part III - Miscellaneous and Legal Provisions
Licensing and Procurement
Employees
Conduct of Negotiations
Injunctions
Warranties
Joint Ventures, Acquisitions and Divestiture of Affiliates
Jointly Owned IPRs
Confidentiality
Commencement and Termination
Arbitration
Retroactive Effect
Compliance with Policy
Legal Conflict
Waiver of Default
Headings
Notices
Construction
6
6
6
6
6
6-7
7
7-8
8
8-9
9
9
9
10
10
10
10
Appendix A - Part IV - SpeciaI Provisions
Renegotiation of Royalty Rates
Technology Transfer
Indemnity in Procurement Contracts for IPR Infringement
11
11
11-13
Annex I - DEFINITIONS
i-ii
Annex II - EMPLOYEES CONFIRMATION FORM
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EXPLANATORY NOTE
The Policy and Undertaking have been extensively revised to reflect the conclusions reached and
decisions made at the June Technical Assembly, and to increase its user-friendliness. Both the Policy
and Undertaking have been divided into parts, to aid comprehension.
Part II of the Policy and Part IV of the Undertaking contain provisions on which major disagreement
between the majority of ETSI members exists, tt is thought that genuine agreement on these provisions
cannot be achieved in the short term. However, it is hoped that a substantial maiority of ETSI’s
members wilI be able to agree an interim policy and undertaking which excludes Part II ~>f the Policy
and Part tV of the Undertaking. To this end automatic termination provisions have been incorporated
in the Policy (paragraph 12) and the Undertaking (clause 18.2), To ensure a long term solution the
Policy contains a commitment to work towards resolution of the key areas of disagreement which now
exist.
Part I of the Undertaking contains provisions which relate to licensing and disclosure of IPRs and should
be of interest to everyone.
Part I1 contains provisions which relate to standards documentation and is primariIy of interest to the
ETSI Secretariat.
Part III contains provisions which will be of primary interest to lawyers, and patent attorneys. It
includes cIauses which normally appear in documents of this type, sometimes referred to as "boiler
plate". Some ciauses are however of commercial significance,
KarI Heinz Rosenbrock
Director of ETSI
20th August 1991
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JAC04653
INTELLECTUAL PROPERTY POLICY
OF THE
EUROPEAN TELECOMMUNICATIONS STANDARDS INSTITUTE
PART I - OBJECTIVES. LICENSING AND IPRs
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,1AC04653
INTRODUCTION
The General Assembly has recognised that the generation of European Telecommunications Standards
(ETSs) may give rise to intellectual property problems and has, therefore, established an Intellectual
Property Policy (the POLICY) and an Inteltectuai Property Rights Committee (IPRC) to advise ETSI and
its members in respec~ thereof.
2. POLICY OBJECTIVES
Pursuant to Articte 2 and 3 of the ETSI Statutes, the main policy objectives of ETSI in relation to IPRs
are to ensure that:
2.1
ETSs shall be based on solutions which meet technical objectives seated by the TA but a
draft ETS shall not be adopted if it is subject to any IPRs for which licences are considered
by ETSI to be needed but are not available on terms which are fair, reasonable, and
non-discriminatory and which in their totality are non-prohibitive;
2.2
the investment made by ETSI members and their AFFILIATES in research and
development, utilised in the establishment of ETSs, shall be adequately and fairly rewarded.
2.3 all ETSI members have real access to telecommunications markets, equivalent to that of
indigenous eommercial and industrial enterprises, in all eountries adopting and
implementing STANDARDS.
3.
IPR UNDERTAKINGS
3.1
3.2
4.
Each applicant for membership of ETSI must provide an IPR UNDERTAKING. Existing
members shall sign the UNDERTAKING within 6 months from receipt of a written request
from ETSI to sign.
The IPR UNDERTAKING referred to in paragraph 3.1 above shall, on signature, be
binding in respect of all ETSI STANDARDS.
CONFIDENTIALITY
The proceedings of a COMMITTEE shall be regarded as non-confidential except as expressly provided
below and all information submitted to a COMMITTEE shall be treated as if in the public domain and
shall be available for pubIic inspection unless:
-
the information is in written or other tangible form; and
-
the information is identified in writing, when submitted, as confidential; and
the information is first submitted to, and accepted by, the Chairman of the TC or STC as
confidential.
Confidential information incorporated in a STANDARD shall be regarded as non-confidential by ETSt
and its members, from the date on which the STANDARD is published.
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5.
OWNERSHIP OF IPRs
The ownership of the copyright in STANDARDS documentation and reports created by
ETSI or any of its COMMITTEES shall vest in ETSI but due acknowledgement shall be
given to copyrights owned by third parties that are identifiable in ETSI copyrighted works.
5,2
5.3
6.
In respect of IPRs otller than copyright in STANDARDS documentation and reports, ETSI
shall only seek ownership of IPRs generated either by its employees or by secondees to ETSI
from organisations who are not members of ETSI. ETSI members and their AFFILIATES
shall be allowed to use such IPRs free of charge.
ETSI shall, on request by a non-member who has signed an undertaking equivalent to that
set out in Appendix A~ grant licences to that non-member on fair and reasonable terms and
conditions in respect of any IPRs, other than those referred to in paragraph 5.1 above,
owned by ETSI.
LICENSING PROVISIONS FOR STANDARDS RELATED LICENCES
6.1
6,2
7.
In respect of ESSENTIAL IPRs, particularly third party ESSENTIAL IPRs, licences should
be available to all members of ETSI on fair, reasonable and non-discriminatory terms and
conditions. If a member of ETSJ is unable to obtain a licence on fair, reasonable and
non-discriminatory terms and conditions in respect of an IPR which is ESSENTIAL to a
STANDARD, immediate steps shall be taken to modify the STANDARD so that such IPR
is no longer ESSENTIAL or to withdraw the STANDARD.
ETSI will make available on request a standard model Iicence which has been approved by
the IPRC.
REPRODUCTION OF STANDARDS DOCUMENTATION
Members of ETSI (including their AFFILIATES) may make copies of STANDARDS documentation
published by ETSI for their own use free of charge but may not distribute such copies to others.
8.
LAW AND REGULATION
The POLICY shall be governed by the laws of France. However, no member of ETSI shall be obliged
by the POLICY to act against the laws or regulations of its country or against supranational laws or
regulations applicable to its country.
9.
POLICY DECISIONS
Without prejudice to ETSI’s statutes and rules of procedures, no decisions shalI be taken by ETSI in
relation to the POLICY and its implementation unless supported by a 71% majority of the weighted
individual votes cast by members.
10.
VIOLATION OF POLICY
10.1 Any violation of the POLICY by an ETSI member shall be deemed to be a breach, by that
member, of its obligations to ETSI. The ETSI GeneraI Assembly shall have the authority
Lo decide the action to be taken, if any, against the ETSI member in breach, in accordance
with the ETSI Statutes.
10.2 Where a member of ETSI or any other person is proven to be in breach of his
UNDERTAKING to ETSI other members of ETSI shall be relieved of any obligations they
may have to that member or that other person pursuant to their UNDERTAKINGS to ETSI,
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1!.
DEFINITIONS
Terms in the POLICY which are written in capital letters shall have the meaning set forth in THE
UNDERTA KING in Appendix A.
12. DURATION
The POLICY, as an interim policy, shaiI:
come into effect on the 1st day of January 1992;
continue in effect until the 31st day of December 1994 or the date of adoption of a
permanent policy by ETSI, whichever is the earlier, and
cease to have effect thereafter.
13. DEVELOPMENT OF POLICY
ETSI and its members shall use their best efforts to agree a permanent intellectual property policy and
undertaking to come into effect at the latest on the 1st day of January 1995. The permanent intellectual
property policy and undertaking wilI incorporate the provisions of the POLICY and UNDERTAKING
amended as agreed by ETSI and its members and shall address the following issues:
-
searching of IPRs, particularly patents, to discover ESSENTIAL IPRs;
-
sharing certain liabilities for infringement of ESSENTIAL IPRs;
-
royalty rates payable for ESSENTIAL IPRs.
For the avoidance of doubt, if a permanent policy and undertaking is not adopted by ETSI prior to the
31st day of December 1994, the Policy shall cease to have effect.
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INTELLECTUAL PROPERTY POLICY
OF THE
EUROPEAN TELECOMMUNICATIONS STANDARDS INSTITUTE
PART II - PROCEDURES AND PROCUREMENT
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TOTAL ROYALTY RATES
Licensors of ESSENTIAL IPRs who are SIGNATORIES of the UNDERTAKING referred to in
paragraph 3.1, shaI1 in setting royalty rates take into account that the total royalty due in respect of
ESSENTIAL IPRs for a particular product or method shall not exceed a level which in itself
unreasonably hinders licensees from participating in markets for such products or methods.
15.
PROCEDURES FOR SEARCHING AND RELATED MATTERS
ETSI shall establish procedures for discovering to the extent reasonably possible the existence and
identity of potentiaIly ESSENTIAL IPRs and the licensing terms in respect of which such IPRs will be
available for ETSI standardisation. The costs associated with these procedures will be borne by ETSI
and financed through contributions of its members,
16.
RISK SHARING
Members of ETSI who are procurers and vendors of equipment specified by reference to an ETS shall
equitably share certain of their risks associated with infringement of ESSENTIAL IPRs.
17,
CATEGORISATION OF STANDARDS
On adoption of a work program by ETSI the Technical Assembly shall decide whether parts of that work
program relate to a STANDARD [or which an IPR investigation is to be performed by ETSI. Such a
STANDARD shall be categorised as a TYPE-B STANDARD, All STANDARDS for which no IPR
investigation is to be performed shall be categorised as TYPE-A STANDARDS. Clauses 15 and 16 of
the POLICY shall only apply to TYPE-B STANDARDS.
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04,553
APPENDIX A
ETSI IPR UNDERTAKING
This undertaking is given this ....... day of .......... by ......... (hereinafter referred to as the SIGNATORY)
whose registered office is at ............... to the EUROPEAN TELECOMMUNICATIONS STANDARDS
INSTITUTE whose registered office is at Route des Lucioles, Sophia-Antipolis, Valbonrte, France
(hereinafter referred to as ETSI).
WHEREAS
1.
The SIGNATORY is fully committed to the objectives of ETSI.
2.
The objectives of ETSI are set out in Articles 2 and 3 of the Statutes of ETSI.
The SIGNATORY is prepared to grant certain licences and accept certain obligations which are
necessary to further the objectives of ETSI.
The SIGNATORY therefore undertakes as follows:-
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APPENDIX A
PART I - PRINCIPLE LICENSING PROVISIONS AND DISCLOSURE OF IPRs
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DEFINITIONS
Terms in tl~e UNDERTAKING which are written in capital letters shall have the meaning set forth in
Annex I attached.
2.
LICENCE GRANT
SubjecE to clauses 4 and 5, the SIGNATORY hereby undertakes on request by any PARTY to grant
licences in accordance with the terms and conditions of the UNDERTAKING to that PARTY under any
ESSENTIAL 1PR which it owns (including, subject to clause 16 below, jointly owned IPRs) or controls.
3.
SCOPE OF LICENCES
3.1
Licences granted pursuant to clause 2 above shall:
be for monetary consideration only unless agreed otherwise by both Licensee and
Licensor;
-
be granted for the full life of ~he licensed IPRs;
-
be non-exclusive, on fair, reasonable and non-discriminatory terms and conditions;
permit MANUFACTURE; sale, lease or other disposal in the TERRITORY of
MANUFACTURED EOUIPMENT; repair, use or operation of MANUFACTURED
EQUIPMENT anywhere; and use of METHODS in the TERRITORY;
-
be of a technieal scope which enables the Licensee to eomply with the STANDARD;
-
conform with the POLICY.
except as expIicitly provided for by the UNDERTAKING, only be terminated by the
Licensor for breach of the licence agreement by the Licensee.
permit the licensee to terminate the licence at any time.
3.2 lf, as a result of a submission by the SIGNATORY:
a copyright owned by the SIGNATORY for software becomes an ESSENTIAL IPR,
the licences granted pursuant to clause 2 shall permit copying, adaptation, translation
and sub-licensing to end users to the extent required for compliance with the
STANDARD;
a right in a mask work, unregistered design right, or a copyright (not related to
software) owned by the SIGNATORY becomes an ESSENTIAL IPR the licences
granted pursuant to clause 2 shall permit such use of the ESSENTIAL IPR as is
required for complying with the STANDARD.
3.3
Licences granted pursuant to clause 2 shall permit the licensee to :
use MANUFACTURED EOUIPMENT anywhere;
make or have made anywhere customised components and sub-systems to the
licensee’s own design, for use in MANUFACTURE.
This clause 3.3 does not require the SIGNATORY to grant licences permitting sale or
disposal outside the TERRITORY.
2
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3.4
41
if a licorice is granted pursuant to Clause 2 or in settlement of an action for infringement
of an ESSENTIAL IPR, the SIGNATORY undertakes to make the licorice effective from
the date on which ~he licensed IPR became ESSENTIAL even if that date is earlier than the
date on which the licence was signed.
RIGHT TO WITHHOLD LICENCES
4.1
The SIGNATORY is entitled to refuse the grant of Iicences for a STANDARD in respect
of an IPR which it owns or controls on condition that the SIGNATORY has notified ETSI
of:
the identity, in an unambiguous manner, of that IPR, and
the STANDARD to which that IPR relates
within 90 days of approval by ETSI’s Technical AssembIy of the first work program
directed to the creation of that STANDARD.
Where a work program for a STANDARD is approved by ETSI’s Technical Assembly before
signature of the UNDERTAKING by the SIGNATORY any notification of IPRs as
unavailable for licenee mus~ be made before signature of the UNDERTAKING.
4.2
4.3
5.
The SIGNATORY undertakes to make use of clause 4.! above only in exceptional cases and
never in the case of an IPR which the SIGNATORY has prior to signature of the
UNDERTAKING undertaken to ETSI to license in respect of that particular STANDARD,
The SIGNATORY shall be relieved of its obiigation to grant any licence under IPRs to the
extent that it can show that it is not contractually free to grant such licences pursuant to a
contract pro-dating the UNDERTAKING provided that the SIGNATORY has made a bona
fide attempt to identify and notify ETSI of all such prior contracts at the time of executing
the UNDERTAKING.
RECIPROCITY OF GRANT
5.1
If a PARTY refuses to grant licences to the SIGNATORY under any IPRs owned or
controtIed by that PARTY which are ESSENTIAL to:
a STANDARD, or
a standard formally proposed by a recognised standards organisation (including ETSI,
CCITT and CCIR) which has an equivalent purpose to that of a STANDARD
then the SIGNATORY shall be relieved of its obligations:
to grant, or not to terminate ticences
to that PARTY under its IPRs relating to the STANDARD.
5,2
The SIGNATORY’s obligation pursuant to clause 2 above to grant licences to a PARTY
shall be void if and for so long as that PARTY is in breach of an Undertaking given by him
to ETSI pursuant to the POLICY or has not signed such Undertaking.
5.3
The SIGNATORY may terminate, on 90 days notice, any iicence granted pursuant to clause
2 above to a PARTY if that PARTY is in breach of an Undertaking given by him to ETSI
pursuant to the POLICY provided that such licence shall be reinstated at the request of the
PARTY if said breach is rectified within the notice period.
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6.
DISCLOSURE OF IPRs AND LICENSING TERMS
6A
The SIGNATORY undertakes te use its reasonable endeavours to disclose to ETSI, before
a STANDARD goes to public enquiry, the identity of potentially ESSENTIAL IPRs which
it owns or controls and:
which come into existence, or
for which application was first made
during the work program for that STANDARD.
The SIGNATORY undertakes not to seek payment from any PARTY for any infringement
of an IPR to which this clause relates:
made by that PARTY in relation to EQUIPMENT or METHODS, and
committed before that IPR was identified to ETSI by the SIGNATORY as potentially
ESSENTIAL.
6.2
The SIGNATORY undertakes in good faith to disclose to ETSI, without undue delay, the
identity of potentially ESSENTIAL IPRs of which it is aware, at any time, and in particular,
ESSENTIAL 1PRs which it owns or controls and which relate to a technical contribution
made by the SIGNATORY to a COMMITTEE.
6.3
If the SIGNATORY acquires ownership or control of IPRs after the date of execution of
the UNDERTAKING which, due to contractual commitments pre-dating such acquisition,
are not available for licensing pursuant to the UNDERTAKING, the SIGNATORY shall
identify and notify ETSI of such IPRs without undue delay.
6.4
The SIGNATORY undertakes, when requested by ETSI, to notify ETSI of the maximum
royalty rate it will demand for the grant of licences in respect of a particular proposed
STANDARD pursuant to any IPRs identified in the request, within 90 days of receipt of
the request.
4
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APPENDIX A
PART II - STANDARDS DOCUMENTATION
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7.
ASSIGNMENT OF LITERARY COPYRIGHT
The SIGNATORY undertakes, when requested ~o do so by ETSI, to assign any copyright it may own in
a complete work which comprises an ETSI technical report, ETS, or I-ETS as published by ETSI. The
SIGNATORY shall not be required to assign any copyright they may own in a work incorporated in an
ETSI technical report, ETS, or I-ETS, unless it comprises the entire work.
8.
L1CENCES UNDER LITERARY COPYRIGHT
8.1
8,2
9.
The SIGNATORY grants and undertakes to grant, ETSI, non-exclusive licences free of any
financial consideration, pursuant to any literary or artistic copyright which the
SIGNATORY owns or controls in non-confidential documents which the SIGNATORY
supplies to ETSI or any COMMITTEE, permitting ETSI to reproduce, translate, adapt, edit
or publish all or part of such documents in ETSI technical reports or standards
specifications.
Any licence granted pursuant to 8.1 shall authorise ETSI to grant sub-licences to third
parties on terms and conditions determined at the discretion of ETSI. In particular such
sub-licences may be royalty bearing or free, and may authorise the grant of further
sub-llcences. The SIGNATORY shall have no claim on any financial return obtained by
ETSI from the grant of such sub-licences.
AUTHOR’S RIGHTS
ETSI shall respect author’s rights, of which they have been made aware, in documents suppiied to ETSI
or COMMITTEES by the SIGNATORY, and shall indemnify and hold harmIess the SIGNATORY in
respect of any action relating to author’s rights arising from any use by ETSI or its sub-licensees of
documents supplied by the SIGNATORY to ETSI.
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APPENDIX A
PART III - MISCELLANEOUS AND LEGAL PROVISIONS
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10.
LICENSING AND PROCUREMENT
The SIGNATORY undertakes that, in a procurement contract relating to EQUIPMENT and METHODS
with a PARTY, it will not impose obligations on that PARTY to license IPRs:
for supply to persons other than the SIGNATORY, or
for manufacture outside the TERRITORY
11,
EMPLOYEES
Nothing in the UNDERTAKING shall limit or restrict the SIGNATORY’S freedom to assign or reassign his employees participating in ETSI work.
12.
CONDUCT OF NEGOTIATIONS
t2.1 When requested by a PARTY to grant licences, pursuant to clause 2 above in respect of an
ESSENTIAL IPR, the SIGNATORY undertakes:
to pursue aIt licence negotiations to a conclusion in good faith and without undue
delay;
to refrain from taking legal action for infringement of the IPR against the PARTY
during negotiations
provided that the PARTY also pursues the negotiations in good faith and without undue
deIay.
12.2 The SIGNATORY undertakes, when seeking a licence from a PARTY under an
ESSENTIAL IPR, to pursue all licence negotiations in good faith and without undue delay.
13.
INJUNCTIONS
The SIGNATORY hereby undertakes not to seek an injunction against a PARTY in respect of any
ESSENTIAL IPR in respect of:
offers for saIe of EQUIPMENT and METHODS or parts thereof to a customer in any
country by a PARTY, or
the supply of EQUIPMENT and METHODS or parts thereof by a PARTY to a customer
in any country and the use thereof by the customer in any country,
provided objective evidence is produced to show that the EQUIPMENT and METHODS is being offered
or supplied for purposes associated with seeking the adoption of a STANDARD in that country.
14.
WARRANTIES
Nothing in the UNDERTAKING shall oblige the SIGNATORY to perform any IPR search or
investigation and the SIGNATORY shall not be deemed to give any warranty or make any representation
with respect to, or have any liability for the accuracy or completeness of any information disclosed in
good faith, or any good faith ommission pursuant to clauses 6.1 and 6.2 above.
15.
JOINT VENTURES, ACQUISITIONS AND DIVESTITURE OF AFFILIATES
15.1
Where a legal entity is not an AFFILIATE of any one member of ETSI, but control of that
legal entity can be exercised by two or more members of ETSI or their AFFILIATES,
including the SIGNATORY, acting in concert, the SIGNATORY undertakes to use all
reasonable endeavours to ensure that the said legal entity signs an undertaking equivaIent
to the UNDERTAKING,
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t5,2
Where a legal entity becomes a new AFFILIATE of the SIGNATORY after the date of
signature of the UNDERTAKING, the SIGNATORY shall use its best endeavour to ensure
that the new AFFILIATE is bound by the terms and conditions of the UNDERTAKING.
Where a SIGNATORY is unable to bind a new AFFILIATE to the terms and conditions of
the UNDERTAKING, it shall immediately disclose this to ETSI together with full details
of the reason for its failure, and shall submit to whatever sanction is provided by the ETSI
statutes. Such an AFFILIATE shall not be entitled to enjoy any rights granted to the
SIGNATORY by equivalent undertakings signed by PARTIES.
15.3 Where an AFFILIATE of a SIGNATORY who is notamember of ETSI in its own right
ceases to be an AFFILIATE, the SIGNATORY shall cease, upon the clare of cessation, to
have any liability whatsoever in respect of that legal entity’s compliance or otherwise with
the UNDERTAKING. Any legal entity ceasing to be an AFFILIATE of the SIGNATORY
shall be deemed to have given ETSI 24 months’ written notice of its intention to terminate
the UNDERTAKING pursuant to clause 18.3 below.
16.
JOINTLY OWNED IPRs
The SIGNATORY undertakes to use its reasonabIe endeavours to ensure that all IPRs, which are or may
become ESSENTIAL, which it jointly owns with third parties, are available for the grant of licences
pursuant to clause 2 above,
17.
CONFIDENTIALITY
17,1 The SIGNATORY undertakes to keep confidential alI CONFIDENTIAL INFORMATION
for a period of two years from the date of disclosure to the SIGNATORY or until the
SIGNATORY is released from any obligation of confidentiality in respect of the
CONFIDENTIAL INFORMATION by a written communication issued by the discloser
thereof or by ETSI, after having obtained the consent of the discloser of the
CONFIDENTIAL INFORMATION, whichever be the earlier.
17.2 The SIGNATORY shall, during the period of confidentiality:
17.2.1
use the CONFIDENTIAL INFORMATION only for purposes associated with
furthering the objectives of ETSI.
17,2.2
ensure that all of its employees who have access to the CONFIDENTIAL
INFORMATION have either signed a confirmation form as set out in Annex
II or are otherwise bound by a contractual obligation of confidentiality to the
SIGNATORY.
17.3 The obIigations imposed by 17.1 and 17.2 above shall not apply to:
(a)
information in the public domain otherwise than in breach of the UNDERTAKING;
(b)
CONFIDENTIAL INFORMATION which the SIGNATORY can show to have been
in its possession prior to any disclosure to which the UNDERTAKING relates and
which came into its possession from a source unrelated to ETSI or a member thereof;
CONFIDENTIAL INFORMATION which the SIGNATORY can show that it
developed or discovered independently and without reference to any information
disclosed to it under or in connection with the UNDERTAKING;
(d)
information obtained from a third party (including an ETSI member) who is free to
divulge it without imposing an obligation of confidentiaIity;
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(e)
CONFIDENTIAL INFORMATION required to be divuiged by order of a court or
other competent authority;
17.4 Any breach of the requirements of this clause 17 discovered by the SIGNATORY shall
immediately be notified to the Chairman ot ETSI’s IPRC and to the discloser of the
CONFIDENTIAL INFORMATION.
17.5 The SIGNATORY waives any right of confidentiality it may have in CONFIDENTIAL
INFORMATION which it discloses to a COMMITTEE:
if the CONFIDENTIAL INFORMATION is disclosed to a COMMITTEE without
having first been submitted to the Chairman of the relevant TC or STC, or
when a STANDARD incorporating the CONFIDENTIAL INFORMATION is
published.
18,
COMMENCEMENT AND TERMINATION
18.1 The UNDERTAKING shall come into effect on the date it is signed by the SIGNATORY.
18,2 The UNDERTAKING shall terminate on the 31st day of December 1994 unless previously
terminated by the SIGNATORY pursuant to clause 18.3 below.
18.3 The UNDERTAKING may be terminated earlier by the SIGNATORY giving ETSI 24
months written notice.
18.4 The SIGNATORY, if a member of ETSI, may not terminate the UNDERTAKING unless
it simultaneously gives 12 months notice in writing of termination of its membership of
ETSI.
18.5 After termination of the UNDERTAKING all licences granted by or to the SIGNATORY
pursuant to the UNDERTAKING shall continue in full force and effect.
18.6 The obligation to grant licences pursuant to the UNDERTAKING shall survive termination
in the case of IPRs:
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created before, and
-
identified to or by ETSI as ESSENTIAL up to 30 months after
termination of the UNDERTAKING, until such time as said IPRs cxpire.
19.
ARBITRATION
19.1 The SIGNATORY undertakes, on request by ETSI, to submit disputes on ESSENTIALITY
which arise pursuant to the POLICY, to arbitration in accordance with clause 19.2 and
accept the resuIt of such arbitration as binding,
19.2 In the event of a dispute between the SIGNATORY and another PARTY in connection with
the UNDERTAKING, the parties to the dispute shall first use their best endeavour to settle
the dispute or difference amicably within a period of 3 mouths after one party has
announced in writing to the other that ~here exists a dispute.
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19.3 AlI disputes which cannot be settled as provided for in clause 19.2 above shall be finally
settled by ad hoc arbitration by three arbitrators. One arbitrator shall be appointed by each
party to the dispute, and the third arbitrator, who shall act as Chairman, shall be appointed
by the two first appointed arbitrators. In the event of one of the parties failing to appoint
an arbitrator within 6 weeks, of the appointment to the first arbitrator, or if the two first
appointed arbitrators fail to agree upon the third arbitrator within 6 weeks of the
appointment of the second of the first two, the second and/or third arbitrator shall be
appointed by the Director of ETSI. The Chairman of the arbitration panel shaii have
proven experience in the issues in dispute.
19.4 The arbitrators shaI1 follow the rules of conciliation and arbitration of the International
Chamber of Commerce in its edition current at the time of arbitration without involving
the International Chamber of Commerce in administrative matters.
19.5 If there be more than one party on one, or on both sides, all parties being on one side shall
act jointly and unanimously as a single party for the appointment of an arbitrator and any
other activities in the course of arbitration.
19.6 The arbitrators shall use their best efforts to give their final judgement not later than six
months from the date on which the third arbitrator has been appointed.
1.9.7 Unless otherwise agreed between the disputing parties, arbitrators shall have their meetings
and hearings in Sophia-Antipolis.
19.8 The decision of the arbitrators shall be final and binding upon the disputing parties.
19.9 Issues of IPR infringement and validity shall not be decided by the arbitrators.
19.10 If the SIGNATORY is not permitted by its national law to be a party to an arbitration and
a dispute arises out of the UNDERTAKING or the POLICY which involves the
SIGNATORY, then such dispute shall be submitted to the jurisdiction of a competent court
of the State of the SIGNATORY.
19.11 The costs of arbitration shall be borne by the parties thereto
arbitrators shatt direct.
20.
and apportioned as the
RETROACTIVE EFFECT
The UNDERTAKING shall supersede and replace all previous undertakings given to ETSI by the
SIGNATORY which relate to ESSENTIAL IPRs. All such prior undertakings shalI be regarded as null
and void by ETSI and its members. However, where the terms and conditions of ticences granted or
offered pursuant to such earlier undertaking would be more favourable as a whole than the terms and
conditions of a lieence granted pursuant to the UNDERTAKING, the SIGNATORY undertakes if so
requested to grant licences in respect of ESSENTIAL IPRs on the terms and conditions specified in said
earlier undertaking.
21.
AFFILIATES’ COMPLIANCE WITH POLICY
The SIGNATORY undertakes that its AFFILIATES will comply with the POLICY and any ruling made
by ETSI pursuant to the POLICY.
22.
LEGAL CONFLICT
Neither the SIGNATORY nor ETSI shall be required to perform an illegal act by the UNDERTAKING.
If any part of the UNDERTAKING conflicts with law or regulation, the UNDERTAKING shall be
amended to the minimum extent necessary to make it comply with that law or regulation. The amended
undertaking shall continue to bind ETSI and the SIGNATORY.
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23.
WAIVER OF DEFAULT
23.I If either ETSI or the SIGNATORY overlooks a default by the other, it shall not be regarded
as permission to default subsequently.
23.2 If either ETSI or the SIGNATORY does not enforce any of the rights granted to it by the
UNDERTAKING, it shall not be prevented from exercising those rights at a later date,
24.
HEADINGS
The headings hereof are included for convenience of reference only and shall not be deemed to be a part
of the UNDERTAKING.
25. NOTICES
AII communications provided for hereunder shalI be in writing and shall be delivered or mailed by
registered mail to the applicable party at the addresses indicated below:Notices to the SIGNATORY shall be addressed to:
Notices to ETSI shall be addressed to:
The Director
European Telecommunications Standards Institute
Route des Lucioles
Sophia - Antlpolls
Valbonne, F06561
FRANCE
All such communications shall be effective when deIivered.
26. CONSTRUCTION
The construction, validity and performance of the UNDERTAKING shall be governed by the laws of
France~
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EUROPEAN TELECOMMUNICATIONS STANDARDS INSTITUTE IPR UNDERTAKING
APPENDIX A
PART IV- SPECIAL PROVISIONS
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27.
RENEGOTIATION OF ROYALTY RATES
The SIGNATORY undertakes, when requested by ETSI, to enter good faith negotiations on licensing
royalty rates for ESSENTIAL IPR. ETSI shall only initiate such negotiations if the total licensing
royalties for particular EQUIPMENT and METHODS are excessive taking into account all commercial
and technical issues. Only ETSI and owners o[ ESSENTIAL IPRs relevant to the particular
EQUIPMENT and METHODS shall take part in such negotiation.
28.
TECHNOLOGY TRANSFER
I[ a PARTY who is a licensee under an ESSENTIAL IPR owned by the SIGNATORY, transfers its
technology to a third party and that technology cannot be used without infringing the ESSENTIAL IPR
or a corresponding IPR owned by the SIGNATORY, the SIGNATORY undertakes to grant that third
party a licence under the ESSENTIAL IPRs and corresponding IPRs to use that technology on terms and
conditions equivalent to those under which the PARTY is licensed under the ESSENTIAL IPR.
29.
INDEMNITY IN PROCUREMENT CONTRACTS FOR IPR INFRINGEMENT
29.1 The SIGNATORY undertakes to apply the rules set forth in this clause 29 relating to joint
Iiability of the purchaser and vendor of EQUIPMENT or METHODS specified by
reference to a STANDARD for infringement of certain ESSENTIAL IPRs.
29.2 Tke SIGNATORY if it procures GOODS for the purpose of operation in the TERRITORY
which are specified in the contract by reference to a B-TYPE STANDARD shall include
terms and conditions which give effect to the ruIes set out in this clause 29 in all contracts
for procurement placed prior to a date 21 months after that STANDARD is placed on public
enquiry. This does not necessarily apply to commercial arrangements between one
manufacturer and another manufacturer or between one operator and another operator.
29.3 Only the following liabilities, incurred through infringement of ESSENTIAL IPRs, are to
be equitably shared:29.3.1
the price of GOODS delivered and/or GOODS in stock and the cost incurred
of GOODS in the course of manufacture directly attributable to a relevant
procurement contract subject to discounting for re-usable parts and
components;
29.3.2
damages awarded by a court of Iaw or arbitration and payments associated with
the settlement of infringement of such ESSENTIAL IPR together with the
associated legal costs which are clearly identified with the supply of GOODS
to which the contract relates;
29.3.3
sums payable for any licences pursuant to such ESSENTIAL IPR which can be
objectively verified as relating solely to GOODS supplied under a relevant
procurement contract.
29.3.4
the price of repurchase of the GOODS by the supplier less any sums recovered
by resale of the GOODS or reuse of the parts thereof.
29.3.5
the cost of modifying GOODS to avoid infringement of ESSENTIAL IPRs.
For the avoidance of doubt liabilities directly related to the infringement of ESSENTIAL
IPRs which arise from use of GOODS by the purchaser where:
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the use is either explicitly set out in the relevant procurement contract or in
absence thereof the use is that use for which the GOODS were designed, and
the infringement arises sotely by virtue of use of the GOODS as supplied
under the relevant procurement contract;
shall be equitably shared by the parties to a relevant procurement contract.
29.4 For the avoidance of doubt indirect losses, consequential losses and losses other than those
referred to in clause 29.3 above shall not be shared but shall lie where they fall.
29,5 For the purposes of this clause 29 the price of GOODS delivered shall be the contract price
discounted by 10% for each full calendar year between the date of delivery of the GOODS
and the date on which the purchaser first ceased using the GOODS because of infringement
of an ESSENTIAL IPR by the GOODS or use of the GOODS.
29.6 For the purposes of this clause 29 GOODS, or use of GOODS, wilI be deemed to infringe
an ESSENTIAL IPR either:
by agreement of the parties to a relevant procurement contract, or
by virtue of a decision enforceable on one of the parties by a court of law
competent to determine issues of IPR infringement.
29.7 If the GOODS supplied or to be supplied under a relevant procurement contract may
infringe an ESSENTIAL IPR, the parties shall meet and use their reasonable endeavour to
agree upon a course of action which minimises the total losses of all parties to the
procurement contract.
In considering the course of action to be followed the parties shall give favourable
consideration to courses of action which include modification of the GOODS by the
supplier so that:
the GOODS no longer infringe ESSENTIAL IPRs, and
the GOODS as modified are capable of performing their specified function or
the function for which they were designed;
even if such modification results in the GOODS as modified no longer complying with the
relevant STANDARD or, should it prove impractical to modify the GOODS, repurchase
of the GOODS by the supplier at the price specified in clause 29.5.
29.8 Where it ean be demonstrated that licences are not available on fair and reasonable terms
in respect of an ESSENTIAL 1PR which is infringed by the supply or use of GOODS
pursuant to a procurement contract, failure to supply or accept GOODS shall not be deemed
a breach of that contract. However, the parties may in accordance with paragraph 29.7
above where this is agreed modify GOODS to avoid infringement. Provisions for
termination by a party pursuant to this paragraph may be included in procurement
contracts.
29,9 Where delays in the deIivery of GOODS are caused by infringement of ESSENTIAL IPRs,
penalty clauses for late delivery in procurement contracts shall be without effect.
29.i0 For the avoidance of doubt any licence which requires payment of a royalty based on the
extent of use of GOODS shall be deemed to be on unfair and unreasonable terms.
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39.11 The contribution by one party whether by way of payment to the other party or by
contribution to the cost of modification of GOODS pursuant to equitable sharing of
liabilities payable as a result of infringement of ESSENTIAL IPR shall not exceed the price
to be paid for GOODS in the original contract for supply of those GOODS.
29.12 Subject to paragraph 29.11 above equitable sharing of liabilities set out in Clauses 29.3.1 29,3.2 above shall be sharing in equal parts between the parties to a relevant procurement
contract.
29.13 Where a supplier sells modified equipment to third parties in countries in which the
unmodified equipment would infringe an ESSENTIAL IPR a purchaser who has contributed
to the cost of modification shall be entitled to a fair and reasonable royalty on the sale.
29.14 Where a supplier modifies equipment to avoid an ESSENTIAL IPR and thereby (as
compared to the unmodified form but disregarding questions of IPR infringement) increases
its utility to the purchaser he shail be entitled to a fair and reasonable payment for the
enhanced sales value of the equipment.
29.15 The royalty a purchaser shall be entitled to by virtue of sub-paragraph 29.3.2 shall be based
upon that portion of the sales value of the modified equipment attributable to the
modification,
29.16 The total royalty payment a purchaser shall be entitled to by virtue of sub-paragraph 29.3.2
and the payment a supplier shall be entitled to under sub-paragraph 29.3.3 shall not exceed
the contribution (as set in clause 29.11) made by that party to the cost of modification of
the goods.
29.17 Nothing in this clause shall prevent this SIGNATORY, when procuring GOODS, offering
to include terms and conditions in a procurement contract which provide for sharing more
favourable to the supplier than in equal parts, provided that the offer of such terms and
conditions is made to all suppliers seeking to enter such contract.
29.18 Nothing in this Annex shall be taken as requiring the SIGNATORY or its AFFILIATES to
refer any dispute relating to a procurement contract to arbitration.
29.19 A Member of ETSI shall not collude with one or more other members or any other party
to increase the royalties and damages payable to said other members in respect of
infringement of ESSENTIAL IPRs owned by said member and/or said other members or
any other party.
29.20 When it has been objectively demonstrated that at the time of entering into the contract one
party to the contract had wilfully withheld information on the basis of which there could
be reasonable grounds to consider an IPR to be ESSENTIAL, the other party to the contract
shall be relieved of his obligations to share liability according to clauses 29.1 - 29.19 in
respect of that IPR. The existence of a patent right published at the time of entering into
the contract shall not in itself constitute evidence of wilful withholding of information.
A party supplying information pursuant to this paragraph Shall bear no liability for the
accuracy of that information. Information supplied pursuant to this paragraph shall be
confidential as between the parties.
30.
Licences granted pursuant to clause 2 shall permit the licensee to make, or procure anywhere,
standard components and materials for use in MANUFACTURE by the licensee.
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For and on behaIf of European Telecommunications Standards Institute
By:
Name:
Position:
Director of the European Standards Institute
Date:
Witnessed:
Name:
Address:
For and on behalf of ........................................................................
By:
Name:
Position:
Date:
Witnessed:
Name:
Address:
Date:
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ANNEX I
DEFINITIONS
"AFFILIATE" of a first legal entity means: any other legal entity
directly or indirectly owning or controlling the first legal entity or
under the same direct or indirect ownership or control as the first legal entity, or
directly or indirectly owned or controlled by the first legal entity,
for so tong as such ownership or control lasts.
Ownership or control shall exist through the direct or indirect:
ownership of more than 50% of the nominal value of the issued equity share capital or of
more than 50% of the shares entitling the holders to vote for the election of directors or
persons performing similar functions, or
right by any other means to elect or appoint directors, or persons who collectively can
exercise such control.
1,
A state, a division of a state or other public entity operating under public law, or any legal entity,
linked to the first legal entity solely through a state or any division of a state or other public entity
operating under public law, shall be deemed to fall outside the definition of an AFFILIATE.
,
"COMMITTEE" shall mean any working party or committee of ETSI and shall include Technical
Committees, Sub-Technical Committees, Project Teams and rapporteur groups.
"CONFIDENTIAL INFORMATION" shatI mean all information deemed to be confidential
pursuant to clause 4 of the POLICY disclosed directly or indirectly to the SIGNATORY or any
of its AFFILIATES together with information on IPRs and licensing distributed by ETSI pursuant
to the POLICY.
3.
,
,
,
7.
.
"EQUIPMENT and METHODS" shall mean any system, device, method or operation fully
conforming to a STANDARD.
"ESSENTIAL" as applied to IPR means that it is not possible on technical but not commercial
grounds, taking into account normal technical practice and the state of the art generally available
at the time of standardisation, to make, sell, lease, otherwise dispose of, repair, use or operate
EQUIPMENT or METHODS which comply with a STANDARD without infringing that IPR. For
the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by
technical solutions, alI of which are infringements of IPRs, all such IPRs shall be considered
ESSENTIAL.
"GOODS" shall mean EQUIPMENT, parts thereof and METHODS.
"IPR" shall mean any intellectual property right conferred by statute Iaw including applications
therefor other than trademarks. For the avoidance of doubt rights relating to get-up, confidential
information, trade secrets or the like are excluded from the definition of IPR.
"MANUFACTURE", shall mean production of EGUIPMENT in the TERRITORY in accordance
with the principles of Regulation (EEC) No 802/68 and 131.8/71 as amended from time to time
- "On the common definition of the concept of the origin of goods".
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9.
"PARTY" means any competent legal entity who is a member of ETSI, or who has given an
undertaking to ETSI of identical effect, to the UNDERTAKING, for so long as its undertaking
is in force. References to a PARTY in the UNDERTAKING shall wherever the context permits
be interpreted as references to that PARTY and its AFFILIATES.
10,
"POLICY" shall mean ETSI’s Intellectual Property Policy.
11.
References to the SIGNATORY in the UNDERTAKING shall wherever the context permits be
interpreted as references to the SIGNATORY and its AFFILIATES.
12,
"STANDARD" shall mean any standard adopted by ETSI including options contained therein or
amended versions and shall include European Telecommunications Standards (ETS), interim ETSs
(I-ETS), Normes Europeenes des Telecommunications (NETs), Common Technical Regulation
(CTR) and drafts thereof, the technical specifications of which are available to all members of
ETSIo The date on which a STANDARD is considered to be adopted by ETSI for the purposes
of this UNDERTAKING shall be the date on which the technical specification of that
STANDARD was available to all ETSI members.
13.
"TERRITORY" shall mean any and all countries:
whose national administration for telecommunications is, at the date of a request by a
PARTY pursuant to clause 2.1 of the UNDERTAKING, a member of ETSI, or
in which an officially recognised national standardization body has formally adopted the
STANDARD and ETSI has deelared that the STANDARD has been implemented in that
country, or
in which ETSI has declared that a major telecommunications network operator has, or is
about to, procure, on a substantial scale, equipment to a specification compliant with that
STANDARD;
provided that a country shall not be regarded as falling within the definition of TERRITORY if
the CEC declares that:
it does not give real access to its telecommunications markets to all commercial enterprises
resident in the TERRITORY on a comparable basis to the access available to indigenous
commercial enterprises, and
conditions do not exist in that country for fair competition.
14. "UNDERTAKING" shall mean this undertaking.
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ANNEX II
EMPLOYEES CONFIRMATION FORM
1.
..................... (the EMPLOYER) has signed an UNDERTAKING.The terms of the
UNDERTAKING relating to confidentiality are annexed to this form.
2,
In accordance with the above-mentioned UNDERTAKING the EMPLOYER is obliged to ensure
that all its employees involved in ETSI work have signed a CONFIRMATION FORM in order to
confirm that the employee has been informed of the obligations in the UNDERTAKING relating
to confidentiality.
.
I confirm that I am an employee of .the EMPLOYER and that [ have read and understood the
annexed terms of the UNDERTAKING.
Date ,,~ ....................
~,,.÷.~.~,t ....t .................................
Signed by ...............................................................
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