2. For the purposes of this paragraph, "any other person" means a person who was:
(a) found in possession of the infringing goods on a commercial scale;
(b) found to be using the infringing services on a commercial scale;
(c) found to be providing on a commercial scale services used in infringing activities; or
(d) identified by a person carrying out an activity referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services.
3. Information referred to in paragraph 1 shall, as appropriate, comprise:
(a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers; and
(b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question.
4. Paragraphs 1 and 2 shall apply without prejudice to each Party's law which:
(a) grants the right-holder rights to receive additional information;
(b) governs the use of the information communicated pursuant to this Article in civil judicial procedures;
(c) governs responsibility for misuse of the right to information;
(d) provides an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit his own participation or that of his close relatives in an infringement of an intellectual property right; or
(e) governs the protection of confidentiality of information sources or the processing of personal data.
Article 141. Provisional and Precautionary Measures
1. Each Party shall ensure that the judicial authorities are able, at the request of the applicant, to issue against the alleged infringer an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by domestic law, the continuation of the alleged infringements of that right, or to make such continuation subject to the lodging of guarantees intended to ensure that the right-holder is compensated. An interlocutory injunction may also be issued, under the same conditions, against an intermediary whose services, including internet services, are being used by a third party to infringe an intellectual property right.
2. An interlocutory injunction may also be issued to order the seizure or delivery of goods suspected of infringing an intellectual property right, so as to prevent their entry into or movement within the channels of commerce.
3. In the case of an alleged infringement committed on a commercial scale, each Party shall ensure that, if the applicant demonstrates circumstances likely to endanger the recovery of damages, the judicial authorities are able, in accordance with domestic law, to order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of bank accounts and other assets of the alleged infringer. To that end, the competent authorities may order the communication of bank, financial or commercial documents, or appropriate access to the relevant information.
Article 142. Remedies
1. Each Party shall ensure that the judicial authorities are able to order, at the request of the applicant and without prejudice to any damages due to the right-holder by reason of the infringement, and without compensation of any sort, the destruction, or at least the definitive removal from the channels of commerce, of goods that they have found to be infringing an intellectual property right. Each Party shall also ensure that, where appropriate, the judicial authorities are able to order the destruction of materials and implements predominantly used in the creation or manufacture of those goods.
2. Each Party's judicial authorities shall have the authority to order that the remedies referred to in paragraph 1 shall be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
3. In considering a request for remedies, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account.
Article 143. Injunctions
Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities are able to issue against the infringer as well as against an intermediary whose services are used by a third party to infringe an intellectual property right an injunction aimed at prohibiting the continuation of the infringement.
Article 144. Alternative Measures
Each Party may provide that the judicial authorities, in appropriate cases and at the request of the person liable to be subject to the remedies provided for in Article 142 or 143, are able to order pecuniary compensation to be paid to the injured party instead of applying the remedies provided for in those Articles if that person acted unintentionally and without negligence, if execution of the remedies in question would cause him disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 145. Damages
1. Each Party shall ensure that the judicial authorities have the authority to order on application by the injured party, an infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity to pay the right-holder adequate damages to compensate for the actual prejudice suffered by the right-holder as a result of the infringement. When the judicial authorities set the damages:
(a) they shall take into account all appropriate factors, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement; or
(b) as an alternative to point (a), they may, in appropriate cases, set the damages as a lump sum on the basis of factors including, as a minimum, the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
2. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, the Parties may provide that the judicial authorities are able to order in favour of the injured party the recovery of profits or the payment of damages, which may be pre-established.
Article 146. Legal Costs
Each Party shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party to the legal proceedings are as a general rule borne by the unsuccessful party, unless equity does not allow this.
Article 147. Publication of Judicial Decisions
Each Party shall ensure that, in legal proceedings instituted with regard to infringement of an intellectual property right, the judicial authorities are able to order, at the request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part.
Article 148. Presumption of Authorship or Ownership
The Parties shall recognise that, for the purpose of applying the measures, procedures and remedies provided for in this Section it shall be sufficient for the name of the author to appear on the literary or artistic work in the usual manner for the author of that work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings. This Article shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter.
Article 149. Administrative Procedures
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set forth in the relevant provisions of this Section.
Subsection 2. BORDER ENFORCEMENT
Article 150. Border Measures
1. With respect to goods under customs control, each Party shall adopt or maintain procedures through which a right-holder is able to submit an application requesting the customs authorities to detain or suspend the release of goods suspected of infringing intellectual property rights, in particular trademarks, copyrights and related rights, geographical indications, patents, utility models, industrial designs, topographies of integrated circuits and plant variety rights (hereinafter referred to as "suspected goods").
2. Each Party shall have in place electronic systems for the management by the customs authorities of the applications granted or recorded. The Kyrgyz Republic shall, no later than five years after the date on which this Agreement enters into force, provide for such electronic systems.
3. When a Party charges a fee to cover the administrative costs resulting from the application or recordation, that fee shall be proportionate to the service rendered and the cost incurred.
4. Each Party shall ensure that its customs authorities decide on the granting or recording of an application within a reasonable period of time in accordance with its law.
5. Each Party shall provide for the application referred to in paragraph 1 to apply to multiple shipments.
6. Each Party shall ensure that, with respect to goods under customs control, its customs authorities are able to act upon their own initiative to detain or suspend the release of suspected goods.
7. Each Party shall ensure that its customs authorities use risk analysis to identify suspected goods.
8. Each Party shall have in place procedures allowing for the destruction: suspected goods, without there being any need for prior administrative or judicial proceedings for the formal determination of the infringements, in particular where the persons concerned agree or are not opposed to the destruction. In cases where goods determined to be infringing are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the commercial channel in such a manner as to avoid any harm to the right-holder.
9. Where the detained or suspended goods are subsequently found not to infringe an intellectual property right, the right-holder shall be liable to any holder or declarant of the goods who has suffered damage in that regard, in accordance with the applicable legislation of each Party.
10. Each Party may have in place procedures allowing for the swift destruction of counterfeit trademark and pirated goods sent in postal or express couriers' consignments.
11. Each Party may decide not to apply this Article to the import of goods put on the market in another country by or with the consent of the rightholders. A Party may exclude from the application of this Article goods of a non-commercial nature contained in travellers' personal luggage.
12. Each Party shall ensure that its customs authorities maintain a regular dialogue and promote cooperation with the relevant stakeholders and with other authorities involved in the enforcement of intellectual property rights.
13. The Parties shall cooperate in respect of international trade in suspected goods. In particular, the Parties agree to share information on trade in suspected goods affecting the other Party, without prejudice to the respective applicable law on personal data protection in each Party.
14. Without prejudice to other forms of cooperation, Protocol I on mutual administrative assistance in customs matters shall be applicable with regard to breaches of legislation on intellectual property rights for the enforcement of which the customs authorities are competent in accordance with this Article.
15. The Intellectual Property Rights Sub-Committee referred to in Article 154 shall be responsible for ensuring the proper functioning and implementation of this Article, in particular in terms of cooperation between the Parties.
Article 151. Consistency with GATT 1994 and the TRIPS Agreement
In implementing border measures for the enforcement of intellectual property rights by customs authorities, whether or not covered by this Sub-Section, the Parties shall ensure consistency with their obligations under GATT 1994 and TRIPS Agreement and, in particular, with Article V of GATT 1994, Article 41 and Section 4 of the Part III of TRIPS Agreement.
Section D. FINAL PROVISIONS
Article 152. Cooperation
1. The Parties agree to cooperate with a view to supporting the implementation of the commitments and obligations undertaken under this Chapter.
2. The cooperation between the Parties shall include the following activities:
(a) exchange of information on the legal framework concerning intellectual property rights and relevant rules of protection and enforcement;
(b) exchange of experience between the Parties on legislative progress;
(c) exchange of experience between the Parties on the enforcement, at central and sub-central level, of intellectual property rights;
(d) coordination to prevent exports of counterfeit goods, including with other countries;
(e) technical assistance, capacity building; exchange and training of personnel;
(f) protection and defence of intellectual property rights and the dissemination of information in this regard in, inter alia, business circles and civil society;
(g) public awareness of consumers and right-holders; enhancement of institutional cooperation, particularly between the intellectual property offices;
(h) awareness promotion and education of the general public on policies concerning the protection and enforcement of intellectual property rights;
(i) promotion of protection and enforcement of intellectual property rights with public-private collaboration involving small and medium-sized enterprises;
(j) formulation of effective strategies to identify audiences and communication programmes to increase consumer and media awareness on the impact of violations of intellectual property rights, including the risk to health and safety and the connection to organised crime.
3. Each Party may make publicly available the product specifications, or a summary thereof, and relevant contact points for control or management of geographical indications of the other Party protected pursuant to Sub-Section 4.
4. The Parties shall, either directly or through the Intellectual Property Rights Sub-Committee referred to in Article 154, maintain contact on all matters related to the implementation and functioning of this Chapter.
Article 153. Voluntary Stakeholder Initiatives
Each Party shall endeavour to facilitate voluntary stakeholder initiatives to reduce the infringement of intellectual property rights, including over the internet and in other marketplaces, focusing on concrete problems and seeking practical solutions that are realistic, balanced, proportionate and fair for all concerned, including in the following ways:
(a) each Party shall endeavour to convene stakeholders consensually in its territory to facilitate voluntary initiatives to find solutions and resolve differences regarding the protection and enforcement of intellectual property rights and reducing infringement;
(b) the Parties shall endeavour to exchange information with each other regarding efforts to facilitate voluntary stakeholder initiatives in their respective territories; and
(c) the Parties shall endeavour to promote open dialogue and cooperation among the stakeholders in the Parties, and to encourage those stakeholders to jointly find solutions and resolve differences regarding the protection and enforcement of intellectual property rights and reducing infringement.
Article 154. Institutional Provisions
1. The Parties hereby establish an Intellectual Property Rights Sub-Committee (the 'IPR Sub-Committee') consisting of representatives of the European Union and the Kyrgyz Republic with the purpose of monitoring the implementation of this Chapter and of intensifying their cooperation and dialogue on intellectual property rights.
2. The IPR Sub-Committee shall meet at the request of either Party, alternately in the European Union and in the Kyrgyz Republic, at a time and a place and in a manner agreed by the Parties, which may include by videoconference, but no later than 90 days after the request has been submitted.
Chapter 9. GOVERNMENT PROCUREMENT
Article 155. Definitions
For the purposes of this Chapter:
(a) "commercial goods or services" means goods or services of a type generally sold or offered for sale in the commercial marketplace to, and customarily purchased by, non‑governmental buyers for non-governmental purposes;
(b) "construction services" means services that have as their objective the realisation by whatever means of civil or building works, based on Division 51 of the UN CPC;
(c) "electronic auction" means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re‑ranking of tenders;
(d) "in writing" or "written" means any worded or numbered expression that can be read, reproduced and later communicated, and includes electronically transmitted and stored information;
(e) "limited tendering" means a procurement method whereby the procuring entity contacts one or more suppliers of its choice;
(f) "measure" means any law, regulation, procedure, administrative guidance document or practice, or any action of a procuring entity relating to a covered procurement;
(g) "multi-use list" means a list of qualified suppliers that the procuring entity intends to use more than once;
(h) "notice of intended procurement" means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender or both;
(i) "offset" means any condition or undertaking that encourages local development or improves a Party's balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, countertrade and similar actions or requirements;
(j) "open tendering" means a procurement method whereby all interested suppliers may submit a tender;
(k) "procuring entity" means an entity covered under a Party's Sub-Section of Section 1, 2 or 3 of Annex 9;
(l) "qualified supplier" means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
(m) "selective tendering" means a procurement method whereby only qualified suppliers are invited by the procuring entity to submit a tender;
(n) "services" includes construction services, unless otherwise specified;
(o) "standard" means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory; it may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
(p) "supplier" means a person or group of persons that provides or could provide goods or services; and
(q) "technical specification" means a tendering requirement that:
(i) lays down the characteristics of goods or services to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production or provision; or
(ii) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service;
(r) "UN CPC" means the United Nations Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991).
Article 156. Scope
1. This Chapter applies to any measure relating to a covered procurement, whether or not it is conducted exclusively or partially by electronic means.
2. For the purposes of this Chapter, "covered procurement" means procurement for governmental purposes:
(a) of a good, a service, or any combination thereof:
(i) as specified in Annex 9; and
(ii) not procured with a view to commercial sale or resale, or for use in the production or supply of a good or a service for commercial sale or resale;
(b) by any contractual means, including: purchase; lease; and rental or hire purchase, with or without an option to buy;
(c) for which the value, as estimated in accordance with paragraphs 6, 7 and 8 of this Article, equals or exceeds the relevant threshold specified in Sections 1, 2 and 3 of Annex 9, at the time of publication of a notice in accordance with Article 160;
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage by paragraph 3 of this Article or by the relevant Party's Sub-Section of Sections 1, 2, 3 or 5 of Annex 9.
3. Except as otherwise provided for in Annex 9, this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings or other immovable property, or the rights pertaining thereto;
(b) non-contractual agreements or any form of assistance that a Party provides, including cooperative agreements, grants, loans, equity infusions, guarantees and fiscal incentives;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption and distribution of public debt, including loans and government bonds, notes and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance if the applicable procedure or condition would be inconsistent with this Chapter.
4. The commitments of each Party on covered procurement and the related access to information are set out in Annex 9 as follows:
(a) in Section 1, the central government entities whose procurement is covered by this Chapter, including the applicable thresholds for covered goods and services;
(b) in Section 2, the sub-central government entities whose procurement is covered by this Chapter, including the applicable thresholds for covered goods and services;
(c) in Section 3, all other entities whose procurement is covered by this Chapter, including the applicable thresholds for covered goods and services;
(d) in Section 4, the services, other than construction services, covered by this Chapter;
(e) in Section 5, general notes and derogations; and
(f) in Section 6, the media in which the Party publishes its procurement notices, award notices, and other information related to its government procurement system as set out in this Chapter.
5. If a procuring entity, in the context of covered procurement, requires a person not covered under the relevant Party's Sub-Section of Section 1, 2 or 3 of Annex 9 to procure in accordance with particular requirements, paragraph 4 of this Article shall apply mutatis mutandis to such requirements.
Valuation
6. In estimating the value of a procurement for the purpose of ascertaining whether it is a covered procurement, a procuring entity shall:
(a) neither divide a procurement into separate procurements nor select or use a particular valuation method for estimating the value of a procurement with the intention of totally or partially excluding it from the application of this Chapter; and
(b) include the estimated maximum total value of the procurement over its entire duration, whether awarded to one or more suppliers, taking into account all forms of remuneration, including:
(i) premiums, fees, commissions and interest; and
(ii) if the procurement provides for the possibility of options, the total value of such options.
7. If an individual requirement for a procurement results in the award of more than one contract or in the award of contracts in separate parts (hereinafter referred to as "recurring contracts") the calculation of the estimated maximum total value shall be based on:
(a) the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity's preceding fiscal year, adjusted, if possible, to take into account anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(b) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity's fiscal year.
8. In the case of procurement by lease, rental or hire purchase of a good or a service, or procurement for which a total price is not specified, the basis for valuation shall be:
(a) in the case of a fixed-term contract:
(i) if the term of the contract is 12 months or less, the total estimated maximum value for its duration; or
(ii) if the term of the contract exceeds 12 months, the total estimated maximum value, including any estimated residual value;
(b) if the contract is for an indefinite period, the estimated monthly instalment multiplied by 48; and
(c) if it is not certain whether the contract is to be a fixed-term contract, point (b) shall apply.
Article 157. Security and General Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party from taking any action or from not disclosing any information that it considers necessary for the protection of its essential security interests relating to the procurement:
(a) of arms, ammunition or war material;