(d) the contract value;
(e) the name and address of the successful supplier; and
(f) the procurement method used.
Provision of Information to the Other Party
10. On request of the other Party, a Party shall provide information on the tender and evaluation procedures used in the conduct of a covered procurement sufficient to demonstrate that the particular procurement was conducted fairly, impartially, and in accordance with this Chapter. The information shall include, at a minimum, the information specified in Article 15.8.2, and, to the extent necessary and without disclosing confidential information, information on the characteristics and relative advantages of the successful tender and on the contract price.
Maintenance of Records
11. A procuring entity shall maintain records and reports of tendering procedures relating to covered procurements, including the reports provided for in Article 15.8, and shall retain such records and reports for a period of at least three years after the award of a contract.
Article 15.10. Ensuring Integrity In Procurement Practices
1. Each Party shall ensure that criminal or administrative penalties exist to sanction:
(a) a procurement official of that Party who solicits or accepts, directly or indirectly, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of that procurement official's procurement functions;
(b) any person who offers or grants, directly or indirectly, to a procurement official of that Party, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of his or her procurement functions; and
(c) any person intentionally offering, promising or giving any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign procurement official, for that foreign procurement official or a third party, in order that the foreign procurement official act or refrain from acting in relation to the performance of procurement duties, in order to obtain or retain business or other improper advantage.
Article 15.11. Domestic Review of Supplier Challenges
1. In the event of a complaint by a supplier of a Party that there has been a breach of the other Party's measures implementing this Chapter in the context of a covered procurement in which the supplier has or had an interest, the Party of the procuring entity shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint.
2. Each Party shall maintain at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review challenges that suppliers submit, in accordance with the Party's law, relating to a covered procurement. Each Party shall ensure that any such challenge not prejudice the supplier's participation in ongoing or future procurement activities.
3. Where a body other than an authority referred to in paragraph 2 initially reviews a challenge, the Party shall ensure that the supplier may appeal the initial decision to an impartial administrative or judicial authority that is independent of the procuring entity that is the subject of the challenge.
4. Each Party shall ensure that the authorities referred to in paragraph 2 have the power to take prompt interim measures, pending the resolution of a challenge, to preserve the supplier's opportunity to participate in the procurement and to ensure that the procuring entities of the Party comply with its measures implementing this Chapter. Such interim measures may include, where appropriate, suspending the contract award or the performance of a contract that has already been awarded.
5. Each Party shall ensure that its review procedures are conducted in accordance with the following:
(a) a supplier shall be allowed sufficient time to prepare and submit a written challenge, which in no case shall be less than ten days from the time when the basis of the complaint became known or reasonably should have become known to the supplier;
(b) a procuring entity shall respond in writing to a supplier's complaint and provide all relevant documents to the review authority;
(c) a supplier that initiates a complaint shall be provided an opportunity to reply to the procuring entity's response before the review authority takes a decision on the complaint; and
(d) the review authority shall provide its decision on a supplier's challenge ina timely fashion, in writing, with an explanation of the basis for the decision.
Article 15.12. Exceptions
1. Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail, or a disguised restriction on international trade, nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining measures:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal, or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to the goods or services of handicapped persons, of philanthropic or not for profit institutions, or of prison labour.
2. The Parties understand that subparagraph 1(b) includes environmental measures necessary to protect human, animal or plant life or health.
Article 15.13. Modifications and Rectifications to Coverage
1. The Joint Committee shall modify the relevant section of Annex 15-A to reflect any agreed modification, rectification, or minor amendment in the following circumstances:
(a) each Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Schedules to Section 1, 2, or 3 of Annex 15-A, provided that it notifies the other Party in writing and the other Party does not object in writing within 30 days of the notification. A Party that makes sucha rectification or minor amendment need not provide compensatory adjustments.
(b) each Party may otherwise modify its coverage under this Chapter provided that it:
(i) notifies the other Party in writing and that Party does not object in writing within 30 days of the notification; and
(ii) offers within 30 days of the notification compensatory adjustments acceptable to the other Party to maintain a level of coverage comparable to that existing prior to the modification, where necessary.
2. A Party need not provide compensatory adjustments where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence in respect of procurement by that entity. Where a Party objects to the assertion that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity's status under this Chapter.
3. Each Party shall continue to encourage increased participation under this Chapter by its regional government entities.
Article 15.14. Cooperation
1. The Parties recognize their shared interest in promoting international liberalization of government procurement markets in the context of the rules-based international trading system, including in the WTO and Asia Pacific Economic Cooperation.
2. Not later than 24 months after the date of entry into force of this Agreement, and at least biennially thereafter, the Joint Commission shall review the operation and implementation of this Chapter.
Article 15.15. Definitions
For the purposes of this Chapter:
1. build-operate-transfer contract and public works concession contract mean any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of such works for the duration of the contract;
2. commercial goods and services mean goods and services of a type of goods and services that are sold or offered for sale to, and customarily purchased by, non-governmental buyers for non-governmental purposes; it includes goods and services with modifications customary in the commercial marketplace, as well as minor modifications not customarily available in the commercial marketplace;
3. conditions for participation means registration, qualification, and other pre-requisites for participation in a procurement;
4. in writing or written means any worded or numbered expression that can be read, reproduced, and later communicated. It may include electronically transmitted and stored information;
5. measure, as defined in Article 1.2.15, includes any guidelines;
6. multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
7. offsets means any conditions or undertakings that require use of domestic content, domestic suppliers, the licensing of technology, technology transfer, investment, counter-trade, or similar actions to encourage local development or to improve a Party's balance-of-payments accounts;
8. open tendering means a procurement method where all interested suppliers may submit a tender; 9. procurement official means any person who performs procurement functions;
10. procuring entity means an entity listed in Sections 1 through 3 of Annex 15-A;
11. selective tendering means a procurement method where the procuring entity determines the suppliers that it will invite to submit tenders;
12. services includes construction services, unless otherwise specified; 13. supplier means a person that provides or could provide goods or services to a procuring entity; and
14. technical specification means a tendering requirement that:
(a) sets out the characteristics of:
(i) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or
(ii) services to be procured, or the processes or methods for their provision, including any applicable administrative provisions; or
(b) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
Chapter SIXTEEN. Electronic Commerce
Article 16.1. General
The Parties recognise the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO Agreement to measures affecting electronic commerce.
Article 16.2. Electronic Supply of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service delivered or performed electronically are subject to the obligations contained in the relevant provisions of Chapters Ten (Cross-Border Trade in Services), Eleven (Investment), and Thirteen (Financial Services), subject to any exceptions applicable to such obligations and to the non-conforming measures described in Articles 10.6 (Non-Conforming Measures), 11.13 (Non-Conforming Measures), or 13.9 (Non-Conforming Measures).
Article 16.3. Customs Duties
Neither Party may impose customs duties, fees, or other charges (16-1) on or in connection with the importation or exportation of digital products, regardless of whether they are fixed on a carrier medium or transmitted electronically.
Article 16.4. Non-discriminatory Treatment of Digital Products
1. Neither Party may accord less favourable treatment to some digital products than it accords to other like digital products:
(a) on the basis that the digital products receiving less favourable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms outside its territory;
(b) on the basis that the author, performer, producer, developer, or distributor of such digital products is a person of the other Party or a non-Party; or
(c) so as to otherwise afford protection to other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in its territory.
2. Neither Party may accord less favourable treatment to digital products: (16-2)
(A) created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to like digital products created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party, or
(b) whose author, performer, producer, developer, or distributor is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, or distributor is a person of a non-Party.
3. Paragraphs 1 and 2 do not apply to:
(a) non-conforming measures adopted or maintained in accordance with Articles 10.6, 11.13, or 13.9;
(b) the extent that they are inconsistent with Chapter Seventeen (Intellectual Property Rights),
(c) subsidies or grants that a Party provides to a service or service supplier, including government-supported loans, guarantees, and insurance; and
(d) services supplied in the exercise of governmental authority, as defined in Article 1.2.22 (Definitions).
4. For greater clarity, paragraphs 1 and 2 do not prevent a Party from adopting or maintaining measures, including measures in the audio-visual and broadcasting sectors, in accordance with its reservations to Chapters Ten and Eleven.
Article 16.5. Authentication and Digital Certificates
1. Neither Party may adopt or maintain legislation for electronic authentication that would
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent parties from having the opportunity to prove in court that their electronic transaction complies with any legal requirements with respect to authentication.
2. Each Party shall work towards the recognition at the central level of government of digital certificates issued by the other Party or under authorisation of that Party.
Article 16.6. Online Consumer Protection
The Parties recognise the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce.
Article 16.7. Paperless Trade Administration
1. Each Party shall endeavour to make all trade administration documents available to the public in electronic form.
2. Each Party shall endeavour to accept trade administration documents submitted electronically as the legal equivalent of the paper version of such documents.
Article 16.8. Definitions
For the purposes of this Chapter:
1. authentication means the process or act of establishing the identity of a party to an electronic communication or transaction or ensuring the integrity of an electronic communication;
2. carrier medium means any physical object capable of storing a digital product, by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, including an optical medium, floppy disk, and magnetic tape;
3. digital certificate means an electronic document or file that is issued or otherwise linked to a party to an electronic communication or transaction for the purpose of establishing the party's identity, authority, or other attribute;
4. digital products means the digitally encoded form of computer programs, text, video, images, sound recordings, and other products, (16-3) regardless of whether they are fixed on a carrier medium or transmitted electronically; (16-4)
5. electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and
6. trade administration documents means forms that a Party issues or controls that must be completed by or for an importer or exporter in connection with the import or export of goods.
Chapter SEVENTEEN. Intellectual Property Rights
Article 17.1. General Provisions
1. Each Party shall, at a minimum, give effect to this Chapter. A Party may provide more extensive protection for, and enforcement of, intellectual property rights under its law than this Chapter requires, provided that the additional protection and enforcement is not inconsistent with this Agreement.
International Agreements
2. Each Party affirms that it has ratified or acceded to the following agreements, as revised and amended:
(a) the Patent Cooperation Treaty (1970);
(b) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
(c) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
(d) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1980);
(e) the International Convention for the Protection of New Varieties of Plants (1991); # the Trademark Law Treaty (1994);
(g) the Paris Convention for the Protection of Industrial Property (1967) (the Paris Convention); and
(h) the Berne Convention for the Protection of Literary and Artistic Works (1971) (the Berne Convention).
3. Further to Article 1.1.2 (General), the Parties affirm their rights and obligations with respect to each other under the TRIPS Agreement.
4. Each Party shall ratify or accede to the WIPO Copyright Treaty (1996) and the WIPO Performances and Phonograms Treaty (1996) by the date of entry into force of this Agreement, subject to the fulfilment of their necessary internal requirements.
5. Each Party shall make its best efforts to comply with the provisions of the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (1999), and the Patent Law Treaty (2000), subject to the enactment of laws necessary to apply those provisions in its territory.
National Treatment
6. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals (17-1) of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection (17-2) and enjoyment of such intellectual property rights and any benefits derived from such rights. With respect to secondary uses of phonograms by means of analogue communications and free over-the-air radio broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded in the territory of the other Party.
7. A Party may derogate from paragraph 6 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:
(a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
8. Paragraph 6 does not apply to procedures provided in multilateral agreements concluded under the auspices of World Intellectual Property Organization (WIPO) in relation to the acquisition or maintenance of intellectual property rights.
Application of Agreement to Existing Subject Matter
9. Except as it provides otherwise, including Article 17.4.5, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement, that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
10. Except as otherwise provided in this Chapter, including Article 17.4.5, a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in the territory of the Party where the protection is claimed.
Application of Agreement to Prior Acts
11. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Transparency
12. Further to Article 20.2 (Publication), and with the object of making its protection and enforcement of intellectual property rights as transparent as possible, each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights shall be in writing and shall be published, (17-3) or where such publication is not practicable, made publicly available, in a national language in such a manner as to enable governments and right holders to become acquainted with them.
Article 17.2. Trademarks, Including Geographical Indications
1. Each Party shall provide that marks (17-4) shall include marks in respect of goods and services, collective marks, and certification marks. Each Party shall also provide that geographical indications are eligible for protection as marks. (17-5)
2. Neither Party may require, as a condition of registration, that marks be visually perceptible, nor may a Party deny registration of a mark solely on the ground that the sign of which it is composed is a sound or a scent, (17-6)
3. Each Party shall ensure that its measures mandating the use of the term customary in common language as the common name for a good or service ("common name") including, inter alia, requirements concerning the relative size, placement, or style of use of the mark in relation to the common name, do not impair the use or effectiveness of marks used in relation to such goods or services.
4. Each Party shall provide that the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs, including geographical indications, for goods or services that are related to those goods or services in respect of which the owner's mark is registered, where such use would result in a likelihood of confusion. In case of the use of an identical sign, including a geographical indication, for identical goods or services, a likelihood of confusion shall be presumed.
5. Each Party may provide limited exceptions to the rights conferred by a mark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the mark and of third parties.
6. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known mark, (17-7) whether registered or not, provided that use of that mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the mark, and provided that the interests of the owner of the mark are likely to be damaged by such use.
7. Recognising the importance of registration systems for marks that provide rights of presumptive validity, through the conduct of examination as to substance as well as to formalities, and through opposition and cancellation procedures, each Party shall provide a system for the registration of marks, which shall include:
(a) providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a mark;
7. Recognising the importance of registration systems for marks that provide rights of presumptive validity, through the conduct of examination as to substance as well as to formalities, and through opposition and cancellation procedures, each Party shall provide a system for the registration of marks, which shall include:
(a) providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a mark;
(b) an opportunity for the applicant to respond to communications from the authorities responsible for registration of marks, to contest an initial refusal, and to appeal judicially any final refusal to register;
(c) an opportunity for interested parties to oppose the registration of a mark or to seek cancellation of a mark after it has been registered; and
(d) a requirement that decisions in opposition or cancellation proceedings be reasoned and in writing.
8. Each Party shall provide:
(a) a system for the electronic application, processing, registration, and maintenance of marks; and
(b) a publicly available electronic database, including an on-line database, of applications for marks and registrations.
9. Each Party shall provide that initial registration and each renewal of registration of a mark shall be for a term of no less than ten years.