The Open Group SOSA™ Consortium Membership Agreement Annex 1: Terms and Conditions
These Terms and Conditions govern the decision making, management and operation of the SOSA™ Consortium, a consortium of The Open Group. Capitalized terms used in this Agreement shall have the respective meanings given them in Schedule A hereto or elsewhere in this Agreement (including in the Application).
A. The Member is one of a group of entities including industry corporations, government agencies and academic entities who collectively comprise the Consortium, which has been established for the purpose of developing and implementing the SOSA Technical Standard and related guidance, business practices and other documentation; and
B. The Consortium Members and the LLC have agreed to operate the Consortium subject to this Agreement and the overall management and direction of the Consortium’s Steering Committee in accordance herewith, following the Consortium’s guiding principles set forth in Schedule B hereto (provided that the Parties agree that such guiding principles shall not be legally binding on either Party under this Agreement). In the event of any conflict or inconsistency between any provision in the body of these Terms and Conditions and any provision of a document that is a schedule, exhibit or other attachment hereto, the provisions set forth in the body of these Terms and Conditions shall prevail and be controlling.
Terms and Conditions
1. Nature of Consortium.
1.1 Contractual Arrangement.
The Consortium has been established through individual bilateral Membership Agreements between the LLC and each of the Consortium Members. Neither this Agreement nor any other Membership Agreement, nor the Consortium as a whole, constitutes, or shall be deemed or construed to constitute, a partnership (whether general or limited), joint venture, fiduciary relationship of any kind, or any arrangement or relationship that is other than strictly contractual in nature, and each Party is and shall remain an independent contractor and is not and shall not be deemed to be a partner, joint venturer, agent or fiduciary of any other Consortium Party for any purpose whatsoever. Accordingly, each Party shall be exclusively responsible for the manner in which it performs its obligations under this Agreement and for the conduct of its activities hereunder, and all financial and other obligations associated with such Party’s status as a party to this Agreement or activities hereunder are the sole responsibility of such Party. Neither Party has, and neither Party shall represent itself as having, any right or authority to obligate or bind any other Consortium Party in any manner whatsoever, and except as may be otherwise expressly provided herein or authorized by the Steering Committee (including pursuant to its authority under Section 10.3) or action of the Consortium Members in accordance with this Agreement, the Member shall not have any right or authority to act in the name of, or on behalf of, the Consortium. Nothing contained in this Agreement shall be construed to (i) give any of the Parties (or their Representatives) the power to direct or control the day-to-day activities of another Consortium Party, (ii) constitute the Parties (and/or any of the other Consortium Parties) as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow any Party to create, discharge or assume any obligation on behalf of another Consortium Party for any purpose whatsoever. The Member retains the right to engage in any independent research and activities that may relate to the goals and activities of the SOSA Consortium.
1.2 Voluntary Consensus Standards Body. The Consortium is formed and operates as a Voluntary Consensus Standards Body. To enable the Consortium to meet the definition of a Voluntary Consensus Standards Body, the LLC, acting in a vendor-neutral, technology-neutral manner, shall have the authority to oversee and direct activities of the Consortium to meet this requirement as may be reasonably necessary, in the LLC’s good faith judgment and to the extent reasonably practicable.
1.3 The Open Group Activity.
For as long as the LLC remains involved in the Consortium, the Consortium shall be deemed an activity of The Open Group (similar in nature and function to The Open Group’s forums and working groups undertaking standard-setting activities), and the Member shall, automatically by virtue of its membership in the Consortium, be deemed a member of The Open Group to the same extent as organizations joining, and participating in, such other forums, working groups and similar activities. For the avoidance of doubt, however, membership in the Consortium does not, in and of itself, constitute owning or holding a limited liability company interest in, or being a member (within the meaning of the Delaware Limited Liability Company Act) of the LLC.
2. Organization of Consortium.
2.1 Consortium Roles/Bodies/Positions.
The Consortium consists of the following primary functional and governing bodies and positions:
(a) Members. Membership levels and entitlements are set forth in Annex 2 to the Application (“Membership Tiers, Fees and Entitlements”), provided, however, that all of the Member’s membership entitlements are dependent on the Member remaining in Good Standing. Further, notwithstanding any other provision of this Agreement to the contrary, the Member (and each other Consortium Member) must be, and all participation in the Consortium is limited to, U.S. Persons; provided, however, that this requirement shall cease to be applicable in the event that (i) the Consortium (acting in accordance with the consensus development and achievement process set forth in the Standards Process) develops rules under which membership in the Consortium by non-U.S. Persons is permitted and (ii) once developed, such rules are (A) approved by the Members by a TwoThirds Vote and (B) undergo and complete Executive Review (as defined in the Standards Process).
The Member’s participation in the activities of the Consortium is conducted through the Member’s Representatives (whether one or more). To the extent the Member is entitled to do so in accordance with the Member’s entitlements, the Member may designate multiple Representatives to exercise such entitlements. In any event, however, the Member shall designate one Representative as a primary and one other Representative as a secondary point of contact for the other Consortium Parties with respect to Consortium matters. All other Consortium Members shall similarly participate through their respective Representatives.
The activities and responsibilities Committee are set forth in Exhibit 4.
(c) Standing Committees and Working Groups. The activities and responsibilities of the Consortium Standing Committees and Working Groups are set forth in Exhibit 4.
(d) Program Director. The role and responsibilities of the Program Director are set forth in Schedule C and are referenced elsewhere in this Agreement.
(e) Advisory Board. The activities and responsibilities of the Advisory Board are set
forth in Exhibit 4.
The LLC serves as the Consortium Operator in accordance with Section 3 and Schedule C.
(g) Guest Participants.
A Guest Participant may take part in the activities of the Consortium only to the extent, and with the authorization, set forth in Section 3.4 of Exhibit 4. Before a Guest Participant’s participation in Consortium activities may begin, such individual must agree to comply with the provisions of a Membership Agreement to the same extent as if such individual were a Representative designated by, and serving on behalf of, the Consortium Member party thereto.
2.2 Code of Conduct. A code of conduct has been established in the form attached hereto as Exhibit 1 (the “Code of Conduct”), to govern the manner in which the Consortium’s activities and operations are conducted. The Member and its Representative(s) shall abide by the Code of Conduct at all times.
Consortium. It is recognized that those Consortium Members originating from the US Government may be subject to additional requirements originating from the National Technology Transfer Act, OMB Circular A-119, the DoD Directive 5500.7-R (Joint Ethics Regulation), and/or other applicable laws and regulations.
2.4 Legal Requirements Prevail. For the avoidance of doubt, under all circumstances, applicable laws and regulations (federal or state) shall supersede any provisions of this Agreement to the contrary.
3. Role of the Consortium Operator
The Consortium is operated in accordance with, and subject to, the several bilateral Membership Agreements (including this Agreement). The Parties acknowledge and agree that the LLC’s role as the Consortium Operator is, except to the extent (if any) otherwise expressly provided herein, purely contractual and not fiduciary and, accordingly, the LLC shall not have any duties or obligations to the other Party that are not expressly set forth in this Agreement.
3.2 The Open Group Services.
For as long as the LLC continues to serve as the Consortium Operator as described in this Agreement, the LLC shall provide the Consortium with the services described on Schedule C.
3.3 Standards Process.
The LLC owns, manages and develops the Standards Process that defines the procedures for key tasks within The Open Group standards development activities on an Open Group-wide basis. The LLC shall guide and facilitate the Consortium in the application of the Standards Process (found at http://www.opengroup.org/standardsprocess/main.html but applicable to the Consortium and the Consortium Members only in the form attached hereto as Exhibit 2 or otherwise as the LLC and the Steering Committee (acting with a TwoThirds Vote) may from time to time agree), and by this Agreement the Member agrees to conduct its Consortium-related activities in accordance with the Standards Process.
4. Reporting Obligations of Consortium Operator.
The Consortium Operator shall provide the following reports to the Steering Committee:
4.1 Quarterly Financial Reports.
Not less frequently than quarterly, the Consortium Operator shall provide to the Steering Committee a report of Consortium-related income and expenditures, prepared on both a quarterly and year-to-date basis (including a year-to-date current balance of Consortium income and expenditures). Such quarterly reporting shall include (i) with respect to income, all income derived from Consortium membership, sales and services for the applicable period (reported separately as Consortium Member fees by membership tier specifying the number of Consortium Members in each such tier and the aggregate fees by each such tier, and other Consortium-related income, if any, by source), and (ii) with respect to expenditures, amounts relating to (A) executive administration costs and expenses, (B) overhead costs and expenses, (C) IT support costs and expenses, (D) Consortium support team costs and expenses, (E) Consortium support team travel and related (such as food, lodging, local travel) costs and expenses, (F) meetings venue rental costs, and (G) other Consortium-related costs and expenses (with an explanation thereof in reasonable detail). The Steering Committee may request an additional explanation and substantiation with respect to any of the above expense categories, and the Consortium Operator shall use its good faith efforts to provide the same to the extent reasonably available; provided, however, that (x) all Consortium-specific expense items will be based on actual cost to the extent actual cost data are available to the Consortium Operator without unreasonable additional effort or expense, and (y) expense items common to the Consortium, on the one hand, and to other LLC activities or operations, on the other hand, will be reported based on allocations determined by the Executive Management Team in good faith to be appropriate.
4.2 Quarterly Activity Reports.
Not less frequently than quarterly, the Consortium Operator shall provide to the Steering Committee a report of the Consortium Operator’s activities, identical in content to the corresponding portion of the quarterly report provided by the Consortium Operator to its Governing Board with respect to the applicable quarter. The Consortium Operator shall review such reports with the Steering Committee as may be reasonably requested by the Steering Committee.
4.3 Governmental Filing Reports. The Consortium Operator shall provide to the Steering Committee a report of all governmental and regulatory filings (including all NCRPA filings) made by the Consortium Operator with respect to the Consortium.
4.4 US Employee Reporting Relationships. The Consortium Operator shall provide to the Steering Committee (i) a report identifying the reporting structure of the LLC’s US-based employees who devote a material portion of their time to supporting Consortium activities and (ii) notification of material changes in the same reasonably promptly after such changes occur.
4.5 Use of Consortium Dues and Fees. The Consortium Operator shall not use proceeds of any dues or fees paid by Consortium Members with respect to their participation in the Consortium for any purpose which would violate US law or regulation, including the Export Administration Regulations, the International Traffic in Arms Regulations and the sanctions laws and regulations administered by the U.S. Department of State and the Department of Treasury’s Office of Foreign Assets Control. 4.6 Third Party Liability. The Consortium Operator shall not bind any Consortium Member or subject any Consortium Member to liability as a result of any agreement made with any Person that is not a Consortium Member without the express written authority of the Steering Committee and agreement of the Consortium Member to be so bound or subjected to liability; provided, however, that this Section 4.6 shall not be construed to impose additional requirements on an amendment to this Agreement (or any other Membership Agreement) effected in accordance with Section 12.1 (or the corresponding provisions of the other Membership Agreements, as applicable).
5.1 Presumption of Non-Confidentiality. The SOSA Consortium, its committees, and the Consortium Members collectively operate with the underlying premise that Consortium Members are not to bring any confidential or proprietary information from their respective organizations for use by, or inclusion in the work of, the Consortium. Accordingly, any confidential or similar marking or statement on any document, including electronic mail, submitted or otherwise provided for any Consortium purpose or use will be disregarded and of no effect.
5.2 Exceptions. Notwithstanding the provisions of Section 5.1:
(a) Work Product, and communications related to Work Product, are considered confidential and may only be shared among Consortium Members and the Consortium Operator (which includes their respective organizations) until the applicable Work Product is published as part of the Published SOSA Standard (or any SOSA Document comprising the same); and
(b) Discussions and deliberations of the Consortium, its functional and governing bodies (including the Steering Committee, various Standing Committees and Working Groups, and the Advisory Board) and the Members and Representatives comprising the same are similarly considered confidential and may only be shared among Consortium Members and the Consortium Operator (which includes their respective organizations), with any public disclosure of any such discussions or deliberations outside the Consortium requiring the prior approval of the Steering Committee.
In such case, Member agrees to maintain all information in accordance with Section 5.2, using the same degree of care Member uses to protect its own proprietary information of like importance, but in no event less than a reasonable degree of care. Member further agrees to disclose information only to its employees and agents with a need to know for the permitted purpose and to require such employee or agent to comply with the confidentiality terms set out in this Agreement.
5.3 Violation as Grounds for Termination. Any violation by the Member of the provisions of Section 5.2 will be considered a material breach of this Agreement for purposes of Section 9.2(b). 6. Intellectual Property Rights.
6.1 Rights and Licenses in Contributions.
6.1.a.1 Pre-Existing Works. It is acknowledged that the Member retains all patent, copyright, trade secret and other intellectual property rights in each Pre-Existing Work that it submits as a Contribution to the Consortium, and except as set forth in this Agreement, no other Consortium Party obtains any ownership or other right in such Pre-Existing Work by virtue of its use in a Consortium activity.
6.1.a.2 SOSA Work Product. The Member agrees that the copyright and all other rights of authorship, as well as trade secret rights (but expressly excluding Patent rights) in all Work Product, shall be owned by the Consortium Operator for the benefit of the Consortium Members and the Consortium. The Member hereby agrees to assign, and upon creation automatically assigns and transfers to the Consortium Operator, all right, title and interest in and to such Work Product. The Member shall, at its own expense, execute and deliver to the Consortium Operator all additional documents, affidavits, certifications and other instruments reasonably required by the Consortium Operator from time to time to further effectuate, evidence and record such transfer.
6.1.b.1 Pre-Existing Works. If the Member submits a Pre-Existing Work as a Contribution to the Consortium, the Member hereby grants to the other Consortium Parties, under all copyright, trade secret and other rights of authorship Controlled by the Member and its Affiliates (but expressly excluding Patent rights):
(i) a non-exclusive, royalty-free, worldwide right and license to use, copy, publicly display, distribute and create derivative works of the Contribution (including to prepare or allow the preparation of translations of the Contribution into languages other than English) solely as part of the Consortium’s activities and Standards Process, which license shall continue for as long as this Agreement remains in effect, and in the case of the LLC, until termination of the LLC’s position and service as the Consortium Operator pursuant to Section 10; and
(ii) if the Pre-Existing Work that is submitted as a Contribution, in its original or modified form, is selected for use in the Published SOSA Standard, a perpetual, irrevocable non-exclusive, royalty-free, worldwide right and license to use, copy, publicly display, distribute and create derivative works of the Pre-Existing Work as part of the Published SOSA Standard (including to use, extract, copy, publish, display, distribute, modify and incorporate into other works, for any purpose (and not limited to use within the SOSA Consortium) any executable code or code fragments that are included in the Published SOSA Standard).
6.1.b.2 Work Product. The Consortium Operator hereby grants to the Member a nonexclusive, royalty-free, worldwide right and license, under all copyright, trade secret and other rights of authorship, to use, copy, publicly display, distribute and create derivative works of the Work Product in connection with the Member’s participation in Consortium activities, for such period that the Member remains in Good Standing.
6.1.b.3 Published SOSA Standard. The Consortium Operator will publish the Published SOSA Standard in a manner intended to make such Published SOSA Standard available to the public without charge (e.g., via a publiclyaccessible and searchable web site or similar online means), subject to the following provisions of this Section 6.1(b)(3):
(i) The Consortium Operator hereby grants an irrevocable, perpetual, nonexclusive, royalty-free, worldwide right and license under all of the Consortium Operator’s copyright, trade secret and other rights of authorship in the Published SOSA Standard (and the documents comprising the same) to any Person (including the Member) downloading or accessing such Published SOSA Standard through facilities made available by the Consortium Operator to use, copy, publicly display and distribute such Published SOSA Standard in the unaltered form in which it was made available by the Consortium Operator, or a verbatim excerpt taken therefrom which includes the copyright notifications specified in Section 6.1(e)(1) below.
(ii) The Consortium Operator will consult with the Steering Committee when it receives requests by third parties to modify and/or create derivative works of any documents comprising the Published SOSA Standard. It is understood that such requests will generally be granted when reasonable and when the likely harm to the SOSA brand is minimal, for example, requests for educational, research, documentation or foreign translation purposes. If and when approved by the Steering Committee, the Consortium Operator will grant such requests pursuant to written license agreements that, if approved by the Steering Committee, may include royalty or other monetary compensation.
(iii) If, pursuant to the Standards Process, the SOSA Consortium is requested to, or determines it advisable to, submit the Published SOSA Standard for adoption or publication by a national or international standards organization such as the American National Standards Institute (ANSI) or the International Organization for Standardization (ISO), the intellectual property policies and requirements of any such organization must first be reviewed for consistency with the licenses granted with respect to such Published SOSA Standard and its constituent Contributions. Published SOSA Standards may not be submitted to such organization unless and until any inconsistency identified in the course of such review is resolved to the satisfaction of the Steering Committee. In addition, any such submission of the Published SOSA Standard for adoption or publication by a national or international standards organization shall be subject to the generally applicable policies and requirements of the Consortium Operator applicable to such submissions of comparable standards of The Open Group.
(c) Standards Process. For the avoidance of doubt, the Member acknowledges that, as between the Member and the LLC, the LLC owns all copyright, trade secret, patent and other intellectual property rights in and to the Standards Process, to the extent that such rights are recognized under applicable law. If the LLC’s role as the Consortium Operator is discontinued before the SOSA Standards are completed, the LLC agrees to extend the Consortium an irrevocable, royalty-free license to use the Standards Process until the Standards drafting process is completed.
(d) Certain Warranties; Indemnity
6.1.d.1 If the Member submits a Pre-Existing Work as a Contribution to the Consortium, the Member represents and warrants hereby that it has the right to so submit such Pre-Existing Work and to grant to the other Consortium Parties the licenses provided in Section 6.1(b)(1), without any infringement or misappropriation by such Pre-Existing Work of any third party copyright, trade secret or other right of authorship. Without limiting the generality of the foregoing, except as set forth in Section 6.1(d)(2), the Consortium Operator makes no representation or warranty regarding any license granted hereunder and disclaims any and all liability arising from the exercise of such licenses, including any liability with respect to the actual or alleged infringement or misappropriation of any third party intellectual property right by any SOSA Document or any Consortium Member’s (or its Affiliates’) Contribution (whether Pre-Existing Works or Work Product) and any actual or alleged infringement of any third party patent or similar right by any product or service implementing all or any portion of the Published SOSA Standard or any SOSA Document.
6.1.d.2 The Consortium Operator represents and warrants hereby that it has the right to use the Standards Process and to grant to the other Consortium Parties the right to use the same pursuant to this Agreement (including Section 6.1(c)), without any infringement or misappropriation by such Standards Process of any third party copyright, trade secret or other right of authorship.
6.1.d.3 The Member shall indemnify, defend and hold harmless the LLC from and against any and all third party claims, actions, liabilities, damages, costs and expenses (“Claim”) arising as a result of any infringement or misappropriation by any Pre-Existing Work of the Member that is provided as a Contribution of any third party copyright, trade secret or other right of authorship. The LLC shall reasonably cooperate, at the Member’s expense, in the defense of any Claim subject to indemnification hereunder. In order to be indemnified hereunder, an Indemnitee must provide the Member with prompt written notice of the Claim and, upon request, cease any infringing activities, production, publication or distribution of such Contribution.
6.1.d.4 Except as otherwise provided in this Section 6.1(d), neither Party makes any representation or warranty with respect to any copyright, trade secret or other right of authorship (or any infringement or misappropriation of the same) in or to any Contribution (whether Pre-Existing Works or Work Product) or the Standards Process. Without limiting the foregoing, nothing in this Section 6.1 shall be deemed to grant to any Party any right or license in or under any Patent.
(e) Copyright Notices
6.1.e.1 Copyright Legend. All published SOSA Documents (as part of the Published SOSA Standard or otherwise) shall bear the following copyright notice: “Copyright [year of first publication], The Open Group, L.L.C. for the benefit of the SOSA Consortium Members”.
6.1.e.2 Right of Attribution. To the extent that portions of the Published SOSA Standard (or any document comprising the same) are excerpted and reproduced by a licensee as permitted under Section 6.1(b)(3)(i) above, the Consortium Operator shall require that such licensee clearly identify and acknowledge the Published SOSA Standard or other published document of origin. For example, the following notifications are acceptable:
(i) Publication front matter acknowledgement/attribution: "xxxx acknowledges The Open Group, L.L.C. for permission to include text/figures derived from its copyrighted [insert name of document and year of publication]."
(ii) Footnote citation/attribution: insert name publication] The Open Group, L.L.C. for Consortium Members. All rights reserved.
document, benefit of
© [year of the SOSA
(iii) Illustrations should include the copyright mark:
© [year of publication] The
Open Group, L.L.C.
6.2 Patent Disclosure.
(a) Required Patent Disclosures.
6.2.a.1 General. The Member shall take reasonable measures to identify all of its Essential Claims as early as possible during, and throughout, the development of the SOSA Documents and its participation in the Consortium. 6.2.a.2 Disclosures. The Member shall use all reasonable efforts to submit a Patent Disclosure relating to a draft SOSA Document to the Consortium Operator prior to commencement of the Working Group/Standing Committee/All-Member Formal Review (as specified in Section 188.8.131.52 of Exhibit 2) of the final draft of such SOSA Document. Such Patent Disclosure shall identify each Essential Claim Controlled by the Member that pertains to such draft SOSA Document. If the Member fails to submit to the Consortium Operator a Patent Disclosure prior to the submission of the affected SOSA Document to the Steering Committee for its review and approval to release such SOSA Document for The Open Group Review as described in Section 184.108.40.206 of Exhibit 2, the Member shall be deemed to have made the Non-Assertion Commitment set forth in Section
(b) Content and Form of Patent Disclosures.
6.2.b.1 Content of Disclosures. Patent Disclosures shall each include the following information regarding each Essential Claim that is believed by the Member to cover the SOSA Technical Standard or any other SOSA Document (in its then current draft form):
(i) Patent number (for issued patents) or application serial number (for patent applications);
(ii) Filing date and, if issued, issuance date;
(iv) Assignee(s) (both past and current);
(v) Jurisdiction (subject to Section 6.2(b)(3) below); and
(vi) The specific SOSA Document(s) that are covered by the Essential Claim (provided that if the relevant SOSA Document includes multiple parts and it is not reasonably apparent which part of such Essential Claims allegedly cover, the discloser must identify the relevant subsections of the SOSA Document).
6.2.b.2 License Election. All Patent Disclosures shall also include the terms on which the Member commits to license such Essential Claims to Implementers.
(i) For each Patent Disclosure, the Member shall decide from one of the following license options:
(A) The Member will not enforce the disclosed Essential Claims against Implementers (“Non-Assertion Commitment”),
(B) The Member will license such Essential Claims to all Implementers without monetary compensation on terms that are otherwise reasonable and Commitment”),
(C) The Member will license such Essential Claims to all Implementers on terms that are otherwise reasonable and non-discriminatory and which may include monetary royalties or other compensation (“Reasonable and Non-Discriminatory or RAND Commitment”), or
(D) The Member will not commit to license such Essential Claims to third parties (“Non-Commitment”).
(ii) The scope of any covenant or license made under this Section 6.2(b)(2) shall be solely under the Member’s Essential Claims and solely to make, have made, use, sell, offer to sell, or import an Implementation that practices the Essential Claims for use in conforming with the published SOSA Standard.
(iii) If the Member makes a RAND Commitment pursuant to Section 6.2(b)(2)(i)(C), then the Member shall also specify in its Patent Disclosure the maximum royalty rate that it will charge with respect to the disclosed Essential Claims, including an explanation of the applicable royalty base and any volume or other applicable discounts.
(iv) The Member’s commitment to license Essential Claims under the licensing mode specified by the Member in a Patent Disclosure shall be irrevocable, except that the Member may, at any time, update its Patent Disclosure to make a “less restrictive” licensing commitment. For purposes of this Section 6.2(b)(2)(iv), “less restrictive” means a commitment that imposes fewer obligations on the licensee. For example, the Member may change its commitment as to certain Essential Claims from a Non Commitment, RAND Commitment or RF Commitment to a Non-Assertion Commitment, from a Non Commitment or RAND Commitment to a RF Commitment and from a Non Commitment to a RAND Commitment. The Member may also lower the maximum royalty that it specifies for a RAND Commitment under Section 6.2(b)(2)(i)(C). However, the Member may not increase the burden on potential licensees by changing its commitment from NonAssertion, RF or RAND to Non Commitment, from Non-Assertion or RF to RAND, or from Non-Assertion to RF. Any such change to a licensing commitment made under this Section 6.2(b)(2)(iv) shall thereafter be irrevocable. If the Member has already granted licenses to Implementers with respect to the Essential Claims, the Member shall not make such change unless it correspondingly amends the terms of its outstanding license agreements with respect to such Essential Claims.
(v) All commitments made as to licensing mode under Section 6.2(b)(2)(i) must transfer with any transfer of the underlying Essential Claims. Accordingly, the Member shall ensure that each and every subsequent transferee, assignee and purchaser of the relevant Essential Claims shall be bound in writing by an identical commitment to abide by such license commitments made pursuant to Section 6.2(b)(2)(i). The Member shall provide a copy of each such written commitment to the Consortium Administrator following each transfer of the relevant Essential Claims (whether such transfer is from the Member or its Affiliates or any subsequent holder thereof).
6.2.b.3 Foreign Counterparts. If the Member files patent applications in additional countries which refer to, and the claims of which are substantially identical to, the claims of a Patent previously disclosed in a Patent Disclosure, the Member is not obligated to make a new or updated Patent Disclosure as a result of filing such applications or the issuance of patents on such applications.
6.2.b.4 Blanket Disclosures Not Recognized. For the avoidance of doubt, the requirement that a Patent Disclosure be made is not satisfied by the submission of a blanket or general statement regarding the possible existence of Essential Claims covering the SOSA Technical Standard or SOSA Document(s). In order to be compliant with this Agreement, a Patent Disclosure must include all of the elements described in Section 6.2(b)(1). Notwithstanding the foregoing, if the Member makes a Non-Assertion Commitment or an RF Commitment, Member shall not be required to comply with the other disclosure requirements of this Section 6.2(b) with respect to any Essential Claims covered by such NonAssertion Commitment or RF Commitment (as applicable).
6.2.b.5 Template. All Patent Disclosures shall be made using a form approved by the Steering Committee and the Consortium Administrator.
(c) Updating Patent Disclosures.
6.2.c.1 Required Updates. The Member shall update or make a new Patent Disclosure promptly after any of the following has occurred: the abandonment or invalidation of a Patent or the final, unappealable rejection of a patent application, that was the subject of a prior Patent Disclosure, the issuance of a Patent on a previously disclosed patent application, unless sufficient information to identify the issued Patent was disclosed when the patent application was disclosed, a material change to a SOSA Document that was the subject of the Member’s prior Patent Disclosure, if such change materially alters the extent to which the disclosed Essential Claims cover such SOSA Document, or
(i) a change to the scope of any previously disclosed Essential Claims that materially expands or reduces the extent to which they cover a SOSA Document.
6.2.c.2 Voluntary Updates. In addition to the foregoing, the Member may update a Patent Disclosure to correct inaccuracies and errors, and to add additional detail, clarification or information, at any time. 6.2.c.3 Application to Later Versions. Patent Disclosures made as to a particular SOSA Document or portion thereof automatically apply to subsequent versions of the SOSA Document, absent the Member’s written update to the Patent Disclosure.
(d) Optional Patent Information Submissions.
6.2.d.1 Patent Information Submissions. In addition to the required Patent Disclosures described in Section 6.2(b), the Member is encouraged to submit to the Consortium Operator any other information relating to Patents that may be relevant to the SOSA Technical Standard, including the applicability of Patents Controlled by Persons other than the Member to the SOSA Technical Standard (or any document comprising the same). Such disclosures are termed “Patent Information Submissions”.
6.2.d.2 After-Acquired Patents. In the event the Member acquires an interest in a Patent that would have required disclosure to the Consortium had it been owned by the Member upon joining the Consortium, the Member agrees to a Non-Assertion Commitment under clause 6.2(e) as to any such Patent.
(e) Non-Assertion of Non-Disclosed Essential Claims. If the Member fails, for any reason, to submit a Patent Disclosure with respect to a Member Essential Claim Controlled by the Member and covering any SOSA Document(s) prior to submission of the affected SOSA Document to the Steering Committee for its review and approval to release such SOSA Document for The Open Group Review as described in Section 220.127.116.11 of Exhibit 2, then the Member shall be deemed to have made an irrevocable and unconditional Non-Assertion Commitment to all Implementers and the LLC as to that Essential Claim, which Non-Assertion Commitment shall be subject to the requirements of Sections 6.2(b)(2)(ii) and (v), and shall thereby bind any subsequent Person Controlling such Essential Claim.
Disclaimer. The Consortium Operator disclaims any responsibility for identifying the existence of or for evaluating the applicability of any Patent or Essential Claim, disclosed or otherwise, to the Published SOSA Standard or any SOSA Document, and will take no position on the validity or scope of any such Patents or Essential Claims. For the avoidance of doubt, the Consortium Operator will not make any determination that a Consortium Member has complied with its commitment to grant licenses of Essential Claims on reasonable and nondiscriminatory, or any other, terms.
(g) Notice of Patent Disclosures.
6.2.g.1 Pre-Publication Notice. When a Patent Disclosure or Patent Information Submission has been made as to a SOSA Document before its final approval, the Consortium Operator shall include a note indicating the existence of such Patent Disclosure in the approval circulation. 6.2.g.2 Publication Notice. When the Published SOSA Standard is published for which a Patent Disclosure or Patent Information Submission has been made, the following notice will be included in such Published SOSA Standard:
“Disclaimer: The Open Group takes no position regarding the validity or scope of any patents or other rights that might be claimed to pertain to the implementation or use of this SOSA Standard or the extent to which any license under such rights might or might not be available; nor does it represent that it has made any independent effort to identify any such rights.”
(h) Availability of Patent Disclosures. All Patent Disclosures shall be made available to all Consortium Members reasonably promptly after they are received by the Consortium Operator.
(a) Ownership. The Member acknowledges that the SOSA Marks are owned by the LLC for the benefit of the Consortium Members, and that the LLC has the right to license the SOSA Marks with the approval of the Steering Committee. The Member shall not register, reserve or claim any SOSA Mark, or any mark that is confusingly similar thereto or which contains all of part of any such mark, as a trademark, service mark, certification mark, trade name, design, registered trade dress, Internet domain name, keyword, search term, account name, alias, hashtag or similar identifier anywhere in the world.
(b) Permitted Uses of SOSA Marks.
6.3.b.1 Right to Use and Display SOSA Marks. The LLC hereby grants to the Member a nonexclusive, royalty-free right to use and display the SOSA Marks solely to identify the Member’s affiliation with the Consortium and status as a Consortium Member and to describe the SOSA implementation of the Standards Process and the SOSA Technical Standards (and, once published, the Published SOSA Standards) in proposals, editorials, white papers, websites and articles and similar documentation.
6.3.b.2 Usage Guidelines. The Member’s use of the SOSA Marks shall be in accordance with the usage guidelines set forth in Exhibit 5, as they may be updated from time to time.
6.4 Conformance Program.
(a) Conformance Program. Under the Consortium’s conformance program, a designated third party Certification Authority will assess products for conformance to the Published SOSA Standard. The conformance program will be voluntary, and any Implementer may submit its products for conformity analysis. Certification of Implementations may be granted for a fixed time period, or until a product undergoes a design change. (b) Anticipated Certification Rates. It is anticipated that the Certification Authority will charge reasonable rates for certification services.
6.5 Intellectual Property Management.
(a) Beneficiaries. The LLC shall at all times during the term of this Agreement use and maintain the Consortium IP for the benefit of the Consortium Members, provided, however, that, notwithstanding the foregoing and for the avoidance of doubt, any and all intellectual property rights relating to the Standards Process (or modifications thereof or improvements thereto) shall be owned by the LLC in its own right (and not for the benefit of Consortium members), for its own use and benefit, and neither the Member nor any other Consortium Member shall have any right, title or interest in any such Standards Process-related intellectual property rights, except for such license rights as are otherwise expressly granted herein.
(b) Maintenance. The LLC shall have the exclusive right to register, renew and maintain the Consortium IP throughout the world, and shall do so at its expense to the extent authorized by the Steering Committee, using counsel selected and compensated by the LLC. The LLC shall have the authority to abandon or decline to renew any Consortium IP registrations that are of little or no anticipated future value to the Consortium, as determined by the Steering Committee.
6.6 Enforcement & Defense of IP rights.
(a) Pre-Enforcement Activity. The LLC will apply reasonable and customary preenforcement monitoring and oversight procedures to police use of the SOSA Marks in the industry. Ordinary course monitoring and first-level, basic enforcement activity, such as initial notification to a third party of potential misuse of the SOSA Marks by such third party, will be performed by the LLC’s internal staff substantially in the manner, and to the extent, in effect as of immediately prior to the effectiveness of this Agreement; provided, however, that the LLC shall not be required to (i) incur any outside costs or expenses in order to perform any such monitoring or enforcement activity, or (ii) undertake or defend any litigation or similar proceeding, in each case absent prior agreement between the LLC and the Steering Committee (addressing, among other things, all matters relating to the funding of the applicable such activity to the satisfaction of each of the LLC and the Steering Committee).
(b) Enforcement Authority; Higher Level Enforcement Activity. The LLC (and not the Member) has the right to enforce Consortium IP rights throughout the world, as and to the extent authorized by the Steering Committee and agreed by the LLC. In the event litigation or other enforcement actions over and above first-level, basic enforcement activity contemplated by Section 6.6(a) (“Higher Level Enforcement”) are required to protect Consortium IP rights the LLC and the Steering Committee will seek to reach mutual agreement on appropriate manner and extent of doing so (with any such agreement addressing, among other things, all matters relating to the funding of such Higher Level Enforcement to the satisfaction of each of the LLC and the Steering Committee). For the avoidance of doubt, the LLC shall have no obligation to undertake any Higher Level Enforcement absent its and the Steering Committee’s agreement to do so.
(c) Steering Committee Authority to Fund. The Steering Committee shall have the authority to seek and obtain funding for any Higher Level Enforcement in such manner and on such terms as the Steering Committee may approve; provided, however, that this Section 6.6(c) may not be used to effect any matter requiring, under the terms of this Agreement, an amendment to this Agreement, and any such matter may be effected only in accordance with Section 12.1.
6.7 Transfer of Intellectual Property and Transition Assistance. The LLC and its future assignees and successors shall follow reasonable direction from the Steering Committee as to any required transfer of ownership of Consortium IP to a third party in the event that (i) the LLC’s position and service as the Consortium Operator is terminated in accordance with Section 10, and (ii) the Steering Committee requests in writing that ownership of the Consortium IP be transferred from the LLC to such third party. The LLC shall provide reasonable assistance in support of such transition. Without limiting the generality of the foregoing, the LLC shall assign all of its right, title and interest in the Consortium IP to such third party without monetary compensation, subject to reimbursement of the LLC’s reasonable costs and expenses (including legal fees) required to effect such transfer. The LLC hereby irrevocably designates and appoints each person specifically designated in writing for such purpose by the Steering Committee as the LLC’s agent and attorney-in-fact to act for and on behalf of the LLC to execute, deliver and file documents to the extent necessary to transfer the Consortium IP to such third party, with the same legal force and effect as if executed by the LLC, if the Steering Committee is unable for any reason to secure the LLC’s signature on any such document; and the LLC acknowledges that this appointment is coupled with an interest.
7. Compliance with Law.
Each Party shall comply with all applicable laws and regulations in all respects relating to its conduct (including the conduct of its employees, staff, agents and Representatives) involving the Consortium or its activities or decision making. Without limiting the foregoing:
7.1 Export Responsibilities and Obligations.
(a) ITAR and EAR. In connection with all Consortium-related activities, the Parties (and their relevant staff) must comply with:
• International Traffic in Arms Regulations (ITAR) - 22 CFR 120-130; and
• Export Administration Regulations (EAR) - 15 CFR 730-774. (b) U.S. Person Requirements. The Member represents that it is a U.S. Person, and will require that each Representative appointed on its behalf be a U.S. Person (in each case, unless and until non-U.S. membership of the Consortium is permitted pursuant to Section 2.1(a)), and will ensure that a signed Export Certification Form for such Representative is submitted promptly to the Consortium Operator.
(c) Member Responsible for Restrictions. The Member is responsible for identifying any US export restrictions or other restrictions associated with any materials to be submitted or otherwise made available by the Member to any other Consortium Party (or its Representatives or other personnel, as applicable), in each case in connection with the activities of the Consortium. Each of the Member’s Representatives is required to acknowledge and comply with the restrictions and instructions imposed by the Consortium Operator associated with any accessed materials.
(d) Rejection of Materials. The Consortium Operator may, in its discretion, refuse to accept any materials submitted by the Member in connection with the activities of the Consortium if the Consortium Operator believes in good faith that such material is not in compliance with applicable export laws. The Consortium Operator shall promptly notify the Steering Committee of any such refusal.
8. Antitrust Compliance.
8.1 Antitrust Guidelines. The Member and its Representative(s) are subject to, and bound by, the Antitrust Guidelines attached hereto as Exhibit 3.
8.2 Filings-Related Authorization. The Member agrees that, upon acceptance into the Consortium, the Member authorizes the Consortium Operator to fulfill the Consortium reporting obligations under the NCRPA. The Consortium Operator will file in accordance with Department of Justice direction, and if permitted by Department of Justice, shall make such filing or filings in such a manner so as to distinguish Consortium Members and the Consortium’s activities from other activities and members of The Open Group. The Member hereby authorizes the Consortium Operator to make such other and further filings as may, in the Consortium Operator’s reasonable judgment, be necessary to comply with any other applicable legal or regulatory requirement in any jurisdiction, and hereby agrees to cooperate with the Consortium Operator in all reasonable respects in connection with reporting obligations.
9. Renewal and Termination.
9.1 Membership Renewal. This Agreement will automatically renew for an additional 1-year term on each anniversary of the date of the later of the signatures of the LLC and the Member on the Application (such later date, the “Effective Date”), unless earlier terminated in accordance with Section 9.2 below or upon termination of the LLC’s position and service as the Consortium Operator in accordance with Section 10. 9.2 Termination.
This Agreement may be terminated by the Member or the LLC, as
(a) by the Member, by written notice to the LLC no less than sixty (60) days prior to the next anniversary of the Effective Date, it being understood that, unless this Agreement is effectively terminated in accordance with the provisions hereof prior to such next anniversary, the Member shall become liable for the annual membership fee as specified in Annex 2 to the Application, at the applicable membership tier as of the date of such anniversary, for the following membership year; or
(b) by the LLC, by written notice to the Member if the Member has committed a material breach of this Agreement (and, in the case of a breach capable of being remedied, has failed to remedy such breach within 30 days after written notice of such breach is given to such Member by the LLC); or
(c) by the LLC, by written notice to the Member if the Member has failed to pay, timely and in full, any amount due and payable by the Member under this Agreement (including Annex 2 to the Application) and all or any portion of such amount remains unpaid for 30 days after written notice of non-payment is given to such Member by the LLC; or
(d) by the LLC, by (and immediately upon) written notice to the Member after the following events occur: (i) the LLC has recommended such termination to the Steering Committee and (ii) the Steering Committee has approved such termination by a Two-Thirds Vote.
9.3 Termination if LLC not Consortium Operator. In addition to the foregoing, this Agreement will, subject to Section 9.5 (including, for the avoidance of doubt, the transition authority provisions of Section 10.3), terminate automatically upon (and contemporaneously with) termination of the LLC’s position and service as the Consortium Operator pursuant to Section 10.1 or Section 10.2.
9.4 Effect of Termination. Upon termination of this Agreement, except as expressly set forth in Section 9.5, neither Party shall have any further liabilities or obligations under this Agreement to the other Party. For the avoidance of doubt, the Member shall not have any right to receive, upon any such termination, any refund or rebate of all or any portion of any fees or dues paid by (or that have become payable by) the Member to the LLC pursuant to this Agreement (including Annex 2 to the Application) or otherwise in connection with the Member’s participation in the Consortium.
9.5 Survival. The provisions of Sections 5.2, 6.1(d)(1), 6.1(d)(3), 6.2(b)(2) (with respect to Essential Claims dating prior to termination), 6.2(c)(1) (with respect to Essential Claims dating prior to termination), 6.2(c)(3), 6.7, 9.4, 10.3, 11, 12.2,
12.3, 12.4 and 12.5 shall survive any termination of this Agreement. 10. Removal and Resignation of Consortium Operator.
10.1 Removal. The LLC may be terminated and removed from its position as the Consortium Operator, with at least 180 days’ advance written notice, by a TwoThirds Vote of Consortium Members taken following the Steering Committee’s recommendation of such termination; provided that prior to any such vote of Consortium Members, the Steering Committee shall give the LLC (i) a written statement setting forth the reasons for the Steering Committee’s recommendation that the LLC be terminated as the Consortium Operator and (ii) an opportunity, for a period of not less than 30 days, to address such reasons with the Steering Committee and cure any related deficiencies and, at the option of the LLC, to communicate with the Members with respect to any and all matters relating to such vote.
10.2 Resignation. The LLC may resign from its position as the Consortium Operator and terminate its service as such, for any reason or for no reason, by at least 180 days’ advance written notice given to each of the Members then in Good Standing.
10.3 Transition Authority of Steering Committee. The Member agrees that, if the LLC position and service as the Consortium Operator are terminated pursuant to Section 10.1 or Section 10.2, then, notwithstanding the consequent termination of this Agreement (and the other Membership Agreements) pursuant to Section 9.3 (or the corresponding provision of the other Membership Agreements, as applicable), the Steering Committee is authorized to continue functioning as such, substantially in accordance with the Steering Committee’s authority under this Agreement (and the other Membership Agreements) and on behalf of the Consortium and the Consortium Members, for an interim period as (and to the extent) may be reasonably necessary for the continued protection of the Consortium’s IP, selection of the replacement operator of the Consortium, and transition of the Consortium’s operations to such replacement operator and any new structural and/or contractual arrangements relating thereto; provided that the Member retains the right to cease its participation in the Consortium during any such interim period by written notice to the Steering Committee.
11. Limitation of Liability. The Member acknowledges that it shall be responsible for any loss, cost, damage, claim, or other charge that arises out of or is caused by its actions to the extent of its negligence or willful misconduct. Neither Party shall be liable to any other Consortium Party for any loss, cost, damage, claim, or other charge that arises out of or is caused by the actions of any other Consortium Party or its employees or agents. Joint and several liability will not attach to the Parties; no Party is responsible for the actions of any other Consortium Party. The Parties agree that in no event will consequential, incidental, special, exemplary or punitive damages be applicable or awarded with respect to any dispute that may arise between or among any of the Consortium Parties in connection with this Agreement or any other Membership Agreement. 12. Miscellaneous.
12.1 Amendment. This Agreement is one of the several bilateral Membership Agreements of like tenor, all of which may be amended or modified only in an identical manner and only by a written instrument executed by the LLC and approved by either (i) the Steering Committee or (ii) the Members, in each case by a Two-Thirds Vote; provided that, notwithstanding the foregoing, the provisions of this Agreement may be waived, with respect to a particular Consortium Member and on a case-by-case basis, by the LLC in its discretion to the extent necessary or appropriate, in the good faith judgment of the LLC, to address the specific circumstances of such Consortium Member without causing a material adverse effect on any other Consortium Party; and provided further that, if (A) such amendment or modification was not approved by the Member or any of its Representatives, and (B) not later than sixty (60) days after being notified of such amendment or modification, the Member resigns from, and terminates its membership in, the Consortium by written notice thereof to the LLC, with immediate effect, then such amendment or modification shall not take effect with respect to the Member prior to such resignation and termination of membership.
12.2 Governing Law; Severability. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any conflicts or choice of laws provision or rule that would have the effect of applying the law of a different jurisdiction in lieu of the laws of the Commonwealth of Massachusetts. If any provision of this Agreement is for any reason declared illegal or unenforceable in any jurisdiction, all other provisions shall remain in full force and effect to the fullest extent permitted by applicable law. For the avoidance of doubt, any such finding of illegality or unenforceability in a given jurisdiction shall not affect the validity of any provisions of this Agreement in any other jurisdiction.
12.3 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by a reputable overnight delivery service, by registered or certified mail, postage prepaid with return receipt requested, or by email, and in each instance will be deemed given upon actual receipt. All communications will be sent to the Parties’ respective addresses set forth in the applicable Membership Agreement or to such other address of a Party as may be specified by such Party to the other Party in accordance with this Section 12.3.
12.4 Entire Agreement. This Agreement and the various documents and instruments incorporated by reference constitute the entire agreement of the Parties with respect to the Consortium, and supersede all prior agreements and undertakings, oral or written, among the Parties with respect to the subject matter of this Agreement.
12.5 Interpretation. The headings preceding the text of the sections of this Agreement are inserted solely for convenience and ease of reference only and shall not constitute any part of this Agreement, or have any effect on their interpretation or construction. Pronouns of any gender shall include all other genders, and the singular shall include the plural and vice versa. References to Sections, paragraphs, clauses, Exhibits and Schedules are to the Sections, paragraphs and clauses of, and Exhibits and Schedules to, this Agreement unless the context clearly indicates otherwise. The term “including” (and grammatical variations thereof) shall mean “including without limitation” (and grammatical variations thereof) unless the context clearly indicates otherwise.
12.6 Consortium Year. The Consortium year (“Consortium Year”) commences each year on June 10, and continues for a year or the date of termination of the Consortium, whichever is earlier. Schedule A
“Advisor” means an individual serving on the Advisory Board, for so long as such individual serves in such capacity.
“Advisory Board” means the Advisory Board referenced in Section 2.1(e) and constituted as set forth in Exhibit 4.
“Affiliate” means, with respect to any specified Person, (i) any Person that directly or indirectly Controls, is Controlled by, or is under common Control with such specified Person, or (ii) any individual that is a member of the immediate family of the specified Person who is an individual.
“Agent” means, with respect to a Party, any individual employee, contractor, agent or representative of such Party who materially participates in any Consortium activity on behalf of such Party.
“Application” means the membership application, executed by the LLC and the Member, to which this Annex 1 is attached and which, together with this Annex 1 and the other Annexes, Schedules, Exhibits and other attachments hereto and thereto, comprise this Agreement.
“Associate Member” means a Consortium Member participating in the Consortium at the “Associate Member” tier as described in Annex 2 to the Application.
“Certification Authority” means an entity or organization to be selected by the Steering Committee to certify product conformance to the Published SOSA Standard.
“Company Review” has the meaning given it in Exhibit 2.
“Consortium” has the meaning given it in the Application.
“Consortium IP” means all copyright, trademark, trade secret and other intellectual property rights other than Patents that arise as part of the SOSA Technical Standard development process including the SOSA Marks and SOSA Work Product, but excluding the Standards Process and any modifications thereof and improvements thereto.
“Consortium IT Infrastructure” means the Consortium’s U.S. Server, collaboration tool and associated data storage.
“Consortium Member” means any Person joining the Consortium by completing, and satisfying the requirements for membership (including acceptance by the Consortium Operator) set forth in, an “Application and Membership Agreement” substantially similar to the Application in form and substance, in its capacity as a party to the corresponding Membership Agreement and thereby a member of the Consortium.
“Consortium Operator” means the LLC, for as long as the Consortium is operated under the auspices of, and by, the LLC in accordance with this Agreement. “Consortium Parties” means, collectively, the Consortium Operator and each of the Consortium Members (in their respective capacities as such), and “Consortium Party” means any of them in such capacity.
“Consortium Year” has the meaning given it in Section 12.6.
“Contribution” means any written or electronic submission by or through a Consortium Member to the Steering Committee, any Standing Committee or Working Group, any other Consortium activity, or otherwise to the LLC which is intended by the contributor to influence or be included as part of the Published SOSA Standard (or any SOSA Document comprising the same), including any proposal, draft, suggestion, specification, drawing, sketch, model, sample, data, computer program, documentation or other technical or business information in written, graphic or other tangible or electronic form.
“Control” (including its correlative meanings, “Controlled by” and “under common Control with”) means, with respect to any Person, the power to direct the management and policies of such Person, through ownership of voting securities, by contract or otherwise; provided that, with respect to intellectual property, “Control” means ownership of such intellectual property right or the right to grant licenses under such intellectual property right to third parties.
“Document Review System” means the document review system component of the online collaboration system in use by The Open Group, as specified by the Program Director.
“Effective Date” has the meaning given it in Section 9.1.
“Enabling Technology” means any technology that may be necessary to make or use any product or portion thereof that complies with the Published SOSA Standard but is neither explicitly required by nor expressly set forth in the Published SOSA Standard (e.g., semiconductor manufacturing technology, compiler technology, object-oriented technology, basic operating system technology, and the like).
“Essential Claim” means an unexpired claim of a Patent that would necessarily be infringed by making, using, selling, offering to sell or importing any mandatory or optional element of the Published SOSA Standard (or any SOSA Document comprising the same) in an Implementation. An Essential Claim does not include any claim (i) other than that set forth above, even if contained in the same patent as the Essential Claim, or (ii) that is essential only for Enabling Technology or to implement or use other specifications published and made available by any other standards body, but referred to in the body of the Published SOSA Standard.
“Executive Management Team” means the senior executive management team of the LLC.
“SOSA” has the meaning given it in the introductory paragraph herein.
“SOSA Document” means any draft or final specification, protocol, standard or other document that is developed within the Standards Process with respect to the SOSA Technical Standard (and/or any related guidance, business practice(s) and/or documentation). “SOSA Marks” means the terms “Sensor Open Systems Architecture” and “SOSA”, and any related symbols, designs, logos and trade dress used by the LLC or developed for use in connection with the SOSA Technical Standard (and/or any related guidance, business practice(s) and/or documentation), the SOSA Consortium, and all trademark, service mark, trade dress and similar rights throughout the world in the foregoing, whether or not registered or recorded, but excluding any trademark, service mark, certification mark, trade dress and similar rights that may be registered by the Certification Authority or another Person for use in identifying Implementations that conform to the Published SOSA Standard.
“SOSA Technical Standard” means a standard of standards that specifies how to develop an open, modular software environment and how to establish a framework to enable the affordable acquisition of software systems that promote rapid integration of portable capabilities across a global portfolio of defense programs.
“Good Standing” means, with respect to a Consortium Member, that such Consortium Member is in compliance with all of its obligations under the Membership Agreement to which it is a party (including payment obligations).
“Guest Participant” means an individual with a particular expertise invited (with specific authorization of the Steering Committee and approval of the Consortium Operator) to participate, in a restricted manner and subject to such conditions as the Steering Committee and/or the Consortium Operator may specify, in identified activities of a designated Standing Committee or Working Group.
“Implementation” means any product, component, process or service, solely to the extent that it implements, incorporates, utilizes or conforms to the Published SOSA Standard.
“ITAR” means the International Traffic in Arms Regulations, 22 C.F.R. §§120 et seq.
“LLC” has the meaning given it in the Application.
“Member” means the Party other than the LLC, for so long as this Agreement remains in effect.
“Member Essential Claim” means an Essential Claim that is Controlled by a Member or any of its Affiliates at any time.
“Membership Agreement” means one of the several bilateral agreements for the membership in the Consortium, each between the LLC and the applicable Consortium Member and in a form substantially identical to this Agreement, pursuant to which, among other things, the Consortium Member party to such Membership Agreement becomes a participant in the Consortium.
“NCRPA” means the National Cooperative Research and Production Act of 1993, as amended, 15 U.S.C. §§4301 et sec., or any successor statute.
“OMB Circular A-119” means the Office of Management and Budget Circular A-119, as in effect from time to time, or any successor regulation. “Officer” means a Representative serving as a Chair or Vice-Chair on the Steering Committee, a Standing Committee or Working Group, for so long as such individual serves in such capacity.
“Party” means each of the two parties to this Agreement, each of whom executed the Application.
“Patent” means any unexpired patent, utility model or similar form of protection for an invention, or any application therefor (whether published or otherwise) anywhere in the world, whether issued or pending.
“Patent Disclosure” means a written disclosure required to be made pursuant to this Agreement.
“Patent Information Submission” has the meaning given it in Section 6.2(d)(1).
“Person” means any corporation, limited or general partnership, limited liability company, trust, unincorporated association, any other entity or organization, governmental authority, agency or body, or an individual.
“Pre-Existing Work” means any work of authorship, design or document created by one or more Members prior to or outside the scope and activities of the Consortium.
“Principal Member” means a Consortium Member participating in the Consortium at the “Principal Member” tier as described in Annex 2 to the Application.
“Program Director” is a staff member of the LLC appointed, and fulfilling the roles and functions and possessing the rights and responsibilities, referenced in Section 2.1(d) and described in Schedule C.
“Published SOSA Standard” means the set of documents which is published by the LLC upon completion of the Standards Process, as the publicly available embodiment of the SOSA Technical Standard, as it may be amended in accordance with the Standards Process and re-published from time to time.
“Representative” means, with respect to a Consortium Member, an individual who is such Consortium Member’s authorized agent (whose authority is confirmed by such Consortium Member to the LLC in writing if requested by the LLC) representing such Consortium Member with respect to the Steering Committee, any Standing Committee or Working Group, or any other Consortium activity.
“Sponsor Member” means a Consortium Member participating in the Consortium at the “Sponsor Member” tier as described in Annex 2 to the Application.
“Standards Process” means the internal processes for the development, consideration, approval, modification and dissemination of standards, specifications and protocols as they may exist from time to time, including any improvements made thereto by any Person, a current summary of which (reflecting modifications specific to the Consortium) is attached hereto as Exhibit 2.
“Terms and Conditions” has the meaning given it in the Application.
“The Open Group” means the global consortium operated under that name by the LLC that enables the achievement of business objectives through consensus-driven standards development, with a diverse membership spanning multiple sectors of the IT community (such as customers, systems and solutions suppliers, tool vendors, integrators and consultants, as well as academics and researchers). Work of such global consortium is effected through forums, working groups and other activities operated by the LLC that facilitate interoperability, evolve and integrate specifications and open source technologies; the Consortium constitutes one of such activities. For the avoidance of doubt, membership of The Open Group (within the meaning of this definition) does not constitute membership in the LLC, and while all of the members (within the meaning of the Delaware Limited Liability Company Act) of the LLC are also members of The Open Group who participate in one or more of The Open Group activities, only a very small minority of members of The Open Group are also members (within the meaning of the Delaware Limited Liability Company Act) of the LLC.
“Two-Thirds Vote” means (i) with respect to the Steering Committee, an affirmative vote of at least two-thirds (2/3) of the Consortium Members then in Good Standing and represented on the Steering Committee and entitled to vote or (ii) with respect to the Consortium Members, a vote of at least two-thirds (2/3) of the Consortium Members then in Good Standing (with each Consortium Member having one vote, without regard to membership tier) and entitled to vote.
“U.S. Person” has the meaning given it in 22 C.F.R. 120.15 (or any successor regulation).
“U.S. Server” means the computer server designated and maintained by the Consortium Operator to host and store Consortium Information and other Consortium materials and communications.
“Voluntary Consensus Standards Body” shall have the meaning set forth in the thencurrent version of U.S. OMB Circular A-119.
“Work Product” means any work of authorship, design or document created by one or more Consortium Members in direct support of any Consortium activity, the collection and compilation of individual Contributions in any one or more SOSA Documents, the Published SOSA Standard, all SOSA Documents comprising the same and other Consortium-related documents, the organization and layout of the Published SOSA Standard (and any SOSA Document comprising the same), and any improvements, modifications and additions to the Standards Process that are developed by one or more Consortium Members during or in connection with any Consortium activity. Schedule B
The guiding principles for the operation of the Consortium, which the Member and the LLC agree shall not be legally binding on either Party, are as follows:
Principle #1 – The primacy of principles
All Consortium decisions and decision-making processes will be based on principles that are agreed by, and openly accessible to, the Consortium Members.
Principle #2 – The Consortium Accepts the Principles of The Open Group
The Consortium is committed to the achievement of The Open Group's vision and mission and adheres to its principles, e.g., Boundaryless Information Flow™; Standards Adoption Criteria (http://www.opengroup.org/standardsprocess/); Making Standards Work®.
Principle #3 – Collaboration
All activities and decisions of the Consortium will be carried out through good will, trust, and collaboration. The Consortium must be inviting and open to hearing everyone’s voice, with all expressing rationale and not just positions. Decisionmaking will be collaborative and informed.
Principle #4 – Shared Purpose
The Consortium’s shared purpose is to advance a common standard. While every Consortium Member has a business rationale for participation, every Consortium Member has joined the Consortium to promote the advancement of the industry and the government, and every Consortium Member will share the credit and the benefit.
Principle #5 – Formal Process
The Consortium follows formal processes for planning, operations, decision-making, and reaching consensus.
Principle #6 – Obligations of Leadership
Individuals serving in Consortium leadership positions serve the Consortium as a whole in pursuit of Consortium objectives. Individuals chairing the Steering Committee or any Consortium Standing Committee or Working Group are obligated to facilitate that body’s pursuit of its agreed objectives and to enable it to make its decisions balanced by consensus, fairness, and the voluntary nature of the organization.
Principle #7 – Openness and Assumption of Good Intent
The Consortium will seek to collaborate and understand by validating assumptions and inferences and by clarifying the meaning of special words used. Schedule C
The Open Group Services
The LLC, in its capacity as (and for so long as it continues to serve as) the Consortium Operator, shall provide the following services to the Consortium:
1. Operation and maintenance of the Consortium IT Infrastructure (including, unless and until non-U.S. membership in the Consortium is permitted pursuant to Section
2.1(a), the requirement that the LLC shall use its good faith efforts to limit access to the U.S. Server and the data and information hosted or stored thereon to U.S. Persons), in substantially the manner used by the LLC prior to January 30, 2017.
2. Making legally required NCRPA filings and reports covering the Consortium in accordance with Department of Justice direction, and if permitted by Department of Justice, making such filings in such a manner so as to distinguish Consortium Members and the Consortium’s activities from other activities and members of The Open Group.
3. Periodic reminders of the Members’ and their Representatives’ obligations under the Antitrust Guidelines and the Code of Conduct.
4. Publication, through The Open Group’s online collaboration system then in effect or in such other manner as the Program Director may reasonably select, of the minutes of meetings of the Steering Committee and other applicable Standing Committees and Working Groups to the Representatives participating in the activities of the applicable such bodies (and such other participants in the activities of the Consortium, including the LLC’s staff and service providers, as the Program Director may in good faith determine to be appropriate), reasonably promptly after delivery of such minutes, in a format ready for publication, to the Program Director; and storage and maintenance of all Steering Committee and Standing Committee/Working Group minutes, upon such publication, within the Consortium IT Infrastructure for as long as the LLC continues to serve as the Consortium Operator.
5. Provision of the services of the Program Director, as follows:
(a) The Program Director is a staff member of the LLC, is appointed by the President of the LLC and is accountable to the President of the LLC. The Program Director will act as a vendor-neutral, technology-neutral, non-voting facilitator of the Steering Committee and its governance, decision making and operations, as well as the liaison between the Executive Management Team and the Consortium and to coordinate the provision of other resources from the LLC in support of the activities of the Consortium. The Program Director also acts in an oversight capacity, on behalf of the LLC, to review and monitor Consortium actions for compliance with the provisions of this Agreement and the Consortium’s status as a Voluntary Consensus Standards Body. To the extent that the Program Director believes in good faith that a particular action or decision of any Consortium body is not in such compliance, the Program Director shall have the authority to veto such action, and any such veto shall be final and binding on all Consortium Members and Representatives.
(b) The Program Director may introduce motions (on behalf of Consortium Members or the LLC) to the Steering Committee but may not vote on any motion or act as a second on a motion. As a non-voting, neutral party to the deliberations of the Steering Committee, the Program Director has the authority to act as the final arbiter of any issues relating to parliamentary procedures (including the application of Section 6 of Exhibit 4 to any vote, approval or other action of the Steering Committee), and any action or decision of the Program Director with respect to the application of Section 6 of Exhibit 4 (or any other parliamentary procedures) to any Consortium (including Steering Committee) action or decision shall be final and binding on all Consortium Members and Representatives.
In addition to the above provisions of this Section 5(b), the Program Director shall endeavor to:
• Publish notification of meetings of the Consortium, together with the agenda and objectives in consultation with the Steering Committee Chair and the ViceChair.
• Maintain an annual plan and roadmap of deliverables for the Consortium.
• Publish appropriate minutes of all meetings of the Steering Committee and Working Groups.
• Report to the Executive Management Team on the activities of the Consortium.
• Report any direction given by the Executive Management Team relating to the activities of the Consortium to Consortium Members.
• Coordinate the provision of other resources from the LLC (such as technical editing, marketing, certification, product/project, management, etc.) to meet the needs of the Consortium.
• Provide general support to the Steering Committee Chair and Vice-Chair to the extent practicable.
• Liaise with the directors of other forums, task forces and consortium bodies of The Open Group to avoid duplication of effort and to encourage the adoption of standards and architectures across the whole of The Open Group to the extent appropriate. Exhibit 1
Code of Conduct
Participation in the SOSA Consortium is governed by your Membership Agreement. In the case of participation in SOSA email lists, teleconference, or face-to-face meetings, this “Code of Conduct” shall apply. If you participate in the SOSA Consortium in any way, your participation will be deemed to be your acceptance of the Standards Process and the Code of Conduct, referred to (collectively and together with the respective Membership Agreements) as “the Rules of the Consortium”. In the event that you do not accept the Rules of the Consortium, please DO NOT PARTICIPATE further in any activity of the Consortium (including the Steering Committee and any Standing Committee and Working Group) and notify the Consortium Operator of your withdrawal from the Consortium.
Code of Conduct
When using these mailing lists, or participating in chaired teleconference meetings, or chaired face-to-face meetings, please follow these rules.
The SOSA mailing list and web site may not be used to market, advertise or otherwise promote goods or services. All Consortium Members and their Representatives have expectations of privacy, and should not be approached as a result of (a) “harvesting” contact details from Consortium e-mail, postings or other Consortium materials, or (b) perceiving a need for particular goods and/or services as a result of Consortium e-mail, postings or other Consortium materials.
1. All participants in Consortium activities are expected to contribute to the discussion surrounding the concept and implementation of standards and best practices. Consortium Members and their Representatives are equally expected to contribute to this discussion and to have individual Representatives with technical and design knowledge.
2. When discussing or sharing information, Representatives are assumed to have been so authorized by their organizations in the full knowledge that all Consortium output could eventually become publicly released material.
3. When discussing potential solutions, Representatives and their respective Consortium Members should understand that the Consortium aims to promote open solutions. Thus, Representatives and their respective Consortium Members should refrain from offering or promoting proprietary solutions and/or technology subject to restrictive patents or licensing unless they are prepared to offer them as an open solution / standard.
For email exchanges: 1. Observe commonly understood and accepted rules of etiquette.
2. Do not send messages that are deliberately hostile and insulting to other users.
3. If your message is directed at just one or two addressees, do not post to a larger audience, but post to the intended addressees directly without copying others.
4. Do not trade insults with other users on email. If a posting offends you, take the matter up with the poster directly (without involving the larger audience), or bring it to the attention of the Chair or the Consortium Operator.
5. Do not send spam or automated "out-of-office" or "vacation" messages to an email or posting list.
6. Send all of your e-mails in English. Only use other languages on mailing lists where that is explicitly allowed.
7. Make sure that you are using the proper mailing list for the topic you are posting on.
8. Wrap your lines at 80 characters or less for ordinary discussion.
9. Do not use mailing lists to discuss or raise topics unrelated to SOSA, such as messages to competitors about the situation in a particular market.
10. Do not send subscription or unsubscription requests to the mailing list address itself; use the respective -request address (or another address provided for the purpose) instead.
11. Try to use plain text instead of HTML.
12. Avoid sending large attachments.
13. When replying to messages on a mailing list, do not send a carbon copy (cc) to the original poster, unless they explicitly request to be copied.
14. If you send messages to mailing lists to which you are not subscribed, always note that fact in the body of your message.
15. Do not use offensive language.
For chaired teleconferences, or chaired face-to-face meetings:
1. Respect the authority of the Chair at all times.
2. Do not act in a manner that is deliberately hostile and insulting to other participants.
3. Do not trade insults with other participants. If the behavior of another participant offends you, take the matter up with that participant after the meeting, or bring it to the attention of the Chair.
4. Communicate in English. Only use other languages in meetings where that is explicitly allowed. 5. Do not use meetings to discuss or raise topics unrelated to the Consortium, such as discussions with competitors about the situation in a particular market.
6. Do not monopolize the time of the meeting. Make your point and defer to other participants who also wish to contribute their opinions.
7. Once a consensus has been achieved and agreed, accept that consensus and allow the meeting to move on to other matters.
8. Do not use offensive language.
Breach of Code of Conduct
If an individual of a Consortium Member organization violates the Rules of Conduct, the following steps may be taken by the LLC, as appropriate:
1. Verbal and written warning regarding behavior – to the individual and the Member Organization represented by such individuals
2. Suspension of the individual’s rights to participate in the Consortium, for a period of three (3) months
3. Suspension of the individual’s organization – temporarily or permanently
Breaches of the Rules of Conduct shall be reported to the LLC management by the Consortium Steering Committee Chair and Consortium Director. In the event of a breach occurring in a Standing Committee, Working Group or other subcommittee, such breach should be reported to the Consortium Steering Committee Chair or Consortium Director by the chair of such Standing Committee or Working Group.
In the event of a suspension, the suspended individual’s Consortium Member organization may assign an alternate Representative to the Consortium. When the suspended period is up, the offender may resume participation with full privileges, or the alternate Representative may be confirmed as the permanent Representative.
A second suspension by the same individual will result in permanent suspension of the individual. In such case, the relevant Consortium Member organization may appoint a new Representative to the Consortium. If the new Consortium Member Representative continues to violate the principles of the Consortium, the Consortium Member organization itself may be suspended.
Process for Reporting Breach
The Consortium Steering Committee Chair and Consortium Director shall report any breaches of the Rules of Conduct to the VP, Membership of the LLC, within 7 working days and in accordance with this Code of Conduct, decide on the sanction for such breach, and notify the individual (and Consortium Steering Committee Chair and Consortium Director) accordingly.
In the event that the individual in breach wishes to appeal against the sanction decided upon by the VP, Membership, such individual shall, within 7 working days, submit a written appeal (email is acceptable) containing the reasons for appeal to the President & CEO of the LLC for consideration. In the event of such appeal, the President and CEO of the LLC shall reject or accept the appeal and confirm, amend, or lift any sanction previously imposed. Exhibit 2
Separate Document to be provided as part of Membership Agreement Package Exhibit 3
Guidelines for Consortium Meetings
To ensure that the antitrust laws are not violated and that there is no appearance that anticompetitive activity is taking place, every participant in the Consortium’s meetings and activities must adhere to the following guidelines:
1. Keep in mind the pro-competitive purposes of the participate only in discussions that further those purposes
Free and open discussion on matters of concern to the industry is essential to the success of the Consortium’s activities. Discussions among Consortium Members should, however, be limited to matters which appropriately advance the Consortium’s purposes.
2. Avoid any discussion of matters pertaining to the way your company competes, including discussions of any company's (whether or not a Consortium Member) prices, services, customers, costs, or non-public future plans
Discussions with competitors concerning commercial or competitive matters always carry a significant antitrust risk. Even if those discussions are not unlawful in themselves, they may be used later to suggest that the Consortium or the Consortium Members had an implicit anti-trust purpose. In particular, there should be no discussions at the Consortium‘s meetings of any matters involving:
• Prices, or other commercial terms and conditions, with respect to any product or service;
• Service levels or quotas;
• Specific customers, competitors or markets, including any customers or areas as to which sales should or should not be made;
• Information concerning any individual company's costs, profits, inventory, pricing formulas, market share, or other commercial information of a non-public nature.
If you become aware of any such discussions, you should stop the discussion until the matter can be reviewed with counsel. If the conversation continues, excuse yourself. Report any such conversations to the Program Director (who will involve counsel as appropriate) or to your company's counsel. 3. Do not engage in any "off the record" discussions or "bull sessions" concerning sensitive matters pertaining to the way in which your company competes or otherwise does business
Substantive discussions should be limited to formal meetings at which counsel or a member or staff representative attuned to antitrust issues is present. Informal discussions of the type that could take place outside a formal meeting often raise the most serious antitrust problems. No substantive discussion should take place in small groups or "bull sessions" outside a formally constituted Consortium meeting.
4. Official minutes of the Consortium’s meetings must be accurate and complete
As the official record of the Consortium proceedings, minutes of the Consortium meetings are potentially of great legal significance. They should accurately and briefly summarize the discussion, describe any actions taken and give the reasons for those actions. The Chairman of each committee should take responsibility for assuring that minutes of meetings are clear, concise, accurate and complete. Any questions about the minutes should be raised with antitrust counsel before they are circulated to the members.
5. Do not disparage other companies or their products and services
Consortium Members should not take actions which could be construed as expressing an agreement to exclude or discriminate against any company, whether or not it is a Consortium Member.
6. If you are in doubt about any activity in connection with a Consortium meeting, consult the Program Director (who will involve counsel as appropriate) or your company's counsel
No guide can fully delimit the scope of permissible and impermissible activities under the antitrust laws. Counsel should be consulted whenever a matter appears to raise antitrust concerns.
In addition, in the course of its activities, the Consortium will be considering technical and other standards. Such standard-setting activity is permitted by the antitrust laws, which recognize that developing standards is an important and legitimate function of industry groups. By eliminating unnecessary incompatibility of products and services, or improving the safety and efficiency of equipment, standards can benefit both the providers and the users of those products and services. Standards must, however, be developed and implemented carefully to assure their compliance with the antitrust laws. In particular, standards should:
• Be advantageous to those who adopt them and their customers;
• Be voluntary. There should never be any agreement or pressure to influence individual companies to adhere to uniform standards; rather, each company should be free to decide on its own whether to adopt or reject the standard;
• Be set in a process which is fair, open, and representative;
• Not arbitrarily exclude competitors or reduce output in a market; and
• Focus on technical and operational factors, and avoid unnecessarily addressing commercial factors. If companies compete on the basis of a difference that will be eliminated by a standard, the standard should be reviewed closely by antitrust counsel before it is adopted.
Exemptions from the Antitrust Laws
There are limited immunities from and exemptions under the antitrust laws which may apply in some circumstances to activities of the Consortium and Consortium Members. Antitrust exemptions can be narrowly construed, and their application to specific conduct generally raises significant questions of law and fact. Therefore, if activity is of the type to raise antitrust concerns, it should never be assumed that an exemption applies. Rather, the issue should be raised with counsel. Exhibit 4
Organization Structure, Operation and Management of the Consortium
A. Bodies, Officers and Roles
1. Steering Committee.
1.1 The Steering Committee consists of (i) the Representatives (one primary and one secondary) designated by each Sponsor Member and Principal Member and (ii) non-voting representatives of the LLC, and is responsible for the overall guidance of the Consortium, including the following:
(a) directing all activities of the Consortium (subject to matters reserved under the Membership Agreements to the Consortium Members, to the LLC or to the Program Director);
(b) approving submission of appropriate Work Product to the LLC for review and publication in accordance with, and upon completion of, the Standards Process;
(c) approving the creation and dissolution of Standing Committees and Working Groups and the charter of each Standing Committee and Working Group (and any changes thereto);
(d) providing direction to the Standing Committees and Working Groups and approving the Chair and the Vice-Chair of each Standing Committee and Working Group;
(e) defining and approving the tasks and roles of the Advisory Board and appointing individuals to serve on the Advisory Board; and
such other matters (subject to matters reserved hereunder to the Consortium Members, to the LLC or to the Program Director) as the Steering Committee may determine to be appropriate.
1.2 The Steering Committee shall elect a Chair and Vice-Chair annually for 1-year terms, beginning at the start of the Consortium Year. Representatives designated by both Sponsor Members and Principal Members are eligible for election. Sponsor Members and Principal Members may submit nominations to the Chair and Vice-Chair positions. The Program Director shall initiate elections for the positions of Steering Committee Chair and Vice-Chair with an announcement (which may be made by email or other means of electronic communication) to each Consortium Member’s Organization (addressed to the Consortium Members’ respective voting Representatives or others known to the Program Director to have the authority to vote on the applicable Consortium Member’s behalf) a minimum of 30 days prior to the end of the Consortium Year, and otherwise at a time intended to permit the election process to be completed so as to allow newly elected officers of the Consortium to be announced during the first week of June in each year (so that those officers may start the new term at the commencement of the next Consortium Year).
1.3 A Sponsor Member or Principal Member can designate only one individual as a voting Representative to the Steering Committee at any given time. This voting Representative to the Steering Committee is designated by the Sponsor Member or Principal Member. The Chair and Vice-Chair of the Steering Committee may or may not be voting Representatives of their respective Consortium Members. There is no limit on the length of time a Representative may serve on the Steering Committee.
1.4 If the Consortium Member which designated a Representative ceases to be a member of the Consortium, the Representative will immediately cease to be a member of the Steering Committee.
1.5 If a Consortium Member ceases to be a Sponsor Member or Principal Member, but continues in a different membership tier, the Consortium Member immediately ceases to have a Representative on the Steering Committee (and such Consortium Member’s Representative will immediately cease to be a member of the Steering Committee).
1.6 The Steering Committee may choose to appoint a Secretary, on a permanent or rotating basis, from among the Representatives then serving on the Steering Committee on a meeting-by-meeting basis. The Secretary is responsible for producing the minutes of the meetings (including, for the avoidance of doubt, any meetings held by means of teleconferencing or other communications equipment whereby all participants in the meeting can hear each other). The minutes will be submitted to the Program Director to be recorded and published. Meeting minutes shall contain, at minimum, a list of attendees and a record of any decisions taken (i.e., resolutions approved or rejected).
2. Steering Committee Chair and Vice-Chair.
2.1 Steering Committee Chair. The Steering Committee Chair is elected annually by the Consortium Members In Good Standing that are represented on the Steering Committee (acting through their respective voting Representatives). Specific responsibilities of the Steering Committee Chair include the following:
(a) convening meetings of the Consortium and generating consensus on the objectives and agenda for each meeting;
(b) chairing meetings of the Consortium and managing them to achieve their objectives within the published agenda; (c) reporting any direction given by the Steering Committee or the LLC to the Consortium Members;
(d) liaising with the Officers of the Working Groups within the Consortium to provide coordination and direction and avoid duplication of effort;
(e) ensuring that all Standing Committees and Working Groups within the Consortium are documented in the Consortium annual plan and roadmap of deliverables; and
ensuring that all projects within the Consortium have open accessibility in participation to all Consortium Members and that all deliverables are regularly accessible (through regular project updates and deliverables made available to all Consortium Members, or otherwise).
2.2 Steering Committee Vice-Chair. The Steering Committee Vice-Chair is elected annually by the Consortium Members In Good Standing that are represented on the Steering Committee (acting through their respective voting Representatives). The Vice-Chair is responsible for supporting the activities of the Steering Committee Chair as needed. In the event that the Steering Committee Chair is unable to attend a meeting, the Vice-Chair shall assume the role of Chair for that meeting.
3. Standing Committees and Working Groups.
3.1 Standing Committees and Working Groups may be established and dissolved from time-to-time by resolution of the Steering Committee. The Steering Committee will approve the charter of each Standing Committee and Working Group. A Working Group charter will specify a defined duration for the Working Group, the extension or renewal of which will require approval by the Steering Committee.
3.2 A Standing Committee is established to carry out operational tasks and functions, characterized by:
(a) A defined scope
(b) Continuous monitoring and/or operational activities
(c) Possible activation by problem resolution, Consortium Member request or a trigger event
(d) Possibly an indefinite duration
3.3 A Working Group is established to complete a specific project, characterized by:
(a) A defined task (b) A defined duration
(c) Defined acceptance criteria
3.4 An individual may take part in activities of the Consortium, as a Guest Participant and with restricted participation only, when and to the extent specifically authorized by the Steering Committee and approved by the LLC. For this purpose, “restricted participation” means no voting privileges; a bounded term for the participation; and in the case of a government representative, assurance of compliance with OMB-119A and Joint Ethics Regulations.
3.5 If an individual’s associated Consortium Member ceases to be a member of the Consortium, or if an individual ceases to be a Consortium Member’s Representative, the individual will immediately cease to be a member of all Standing Committees and Working Groups.
3.6 Each Standing Committee and Working Group may choose to appoint a permanent Secretary, or rotate the post among the membership of the Standing Committee or Working Group (as applicable) on a meeting-by-meeting basis. The Secretary is responsible for producing the minutes of the meetings (including, for the avoidance of doubt, any meetings held by means of teleconferencing or other communications equipment whereby all participants in the meeting can hear each other). The minutes will be submitted to the Program Director to be recorded and published. Meeting minutes shall contain, at minimum, a list of attendees and a record of any decisions taken (i.e., resolutions approved or rejected).
3.7 The Program Director is entitled to attend any Standing Committee or Working Group meeting. He or she is not obliged to attend, and not obliged to become a member of any Standing Committee or Working Group.
3.8 The Advisory Board is composed of one or more Advisors appointed by the Steering Committee and Sponsor Members to perform specific roles or tasks as described below. The Advisory Board has been established to facilitate the goal of the National Technology Transfer Act and OMB Circular A-119 in encouraging the participation of federal government representatives in a Voluntary Consensus Standards Body, thus increasing the likelihood that standards under development will meet both public and private sector needs. The Advisory Board does not participate in the governance of the Consortium.
3.9 The Consortium will encourage the participation of individual persons from government, industry or academia who are subject matter experts (“SMEs”) not necessarily associated with any particular organization. Unlike Consortium Members, the participation with the Consortium through the Advisory Board is by individual persons rather than by organizations. The Steering Committee creates and approves the policies and procedures under which the Advisory Board (if any) will operate. 3.10 The following provisions shall apply to the constitution of the Advisory Board and the individual Advisors’ services thereon:
(a) The Steering Committee will identify appropriate federal government agencies and solicit individuals from such agencies who can advise the Consortium on achieving the Consortium’ mission.
(b) The Steering Committee will identify appropriate individual persons who are SMEs in technical, political or business areas who can advise the Consortium on achieving its mission.
(c) Nominees for participation on the Advisory Board as an Advisor may be brought forward to the Steering Committee as a recommendation from any Consortium Member.
(d) The position of Chair (and, in the discretion of the Steering Committee, a ViceChair) and all members of the Advisory Board will be appointed by the Steering Committee and will serve at the pleasure of the Steering Committee.
(e) Serving as an Advisor on the Advisory Board does not constitute or imply membership in the Consortium.
No active member of the Advisory Board may serve as the Chair or Vice-Chair of the Steering Committee, function as a Representative of a Consortium Member or participate in any governance of the Consortium. If an individual is to function as a Representative of a Consortium Member, that individual must resign his or her position as an Advisor on the Advisory Board.
(g) An Advisor who is an employee of, or otherwise associated with, a government agency may participate in a Standing Committee or Working Group provided that it is made clear that the Advisor is so participating only in his or her individual capacity and does not represent views of such government agency.
(h) An Advisor who is an employee of, or otherwise associated with, a government agency may participate in discussions of, and comment on, matters that may be of interest to such government agency (as well as the Consortium) provided that it is made clear to the Consortium that the opinions expressed by the Advisor are those solely of the Advisor and do not bind the agency or any component of the agency to any action.
Any information shared with the Consortium should be limited to publicly releasable information. Participation of an Advisor should not give the Consortium any greater access to federal government information than the public-at-large or to that information which would be normally shared with like organizations.
Participation by the Advisor should not give the appearance of partiality with respect to the Consortium or the Consortium Members. (k) Participation within the Advisory Board or a Standing Committee or Working Group by a federal government agency liaison does not imply endorsement or sponsorship by that agency of any conclusions or Work Product produced by the Consortium.
The comments, observations or other input given to the Consortium by Advisory Board members will not be attributed to the Advisory Board member giving the same without explicit permission (written or oral) from such Advisory Board member.
4. Elections of Steering Committee Chair and Vice-Chair.
4.1 Ballots to elect the Steering Committee Chair and Vice-Chair are taken annually. The Program Director shall announce the need for an election by e-mail to all Members at least 30 days prior to the date of the election. Each Consortium Member in Good Standing that is represented on the Steering Committee shall be entitled to propose a candidate for each post. Self-nomination is acceptable. A period of two working weeks shall be allowed for nominations.
4.2 On closure of the nomination period, the Program Director shall contact each candidate to obtain confirmation the candidate is willing to serve if elected.
5. Election principles:
5.1 If there is a single candidate, Consortium Members in Good Standing that are represented on the Steering Committee shall ballot to accept the candidate.
5.2 If there are two candidates, Consortium Members in Good Standing that are represented on the Steering Committee shall ballot and the candidate receiving the higher number of votes shall be elected.
5.3 If there are three or more candidates, Consortium Members in Good Standing that are represented on the Steering Committee shall ballot. If any candidate receives more than 50 percent of the votes cast, that candidate shall be elected. Otherwise, there shall be a second ballot between the two (2) candidates (or, if the Program Director determines to be appropriate in the event that a greater number of candidates receive material support in the first ballot, such greater number of candidates) receiving the highest number of votes in the first ballot; the candidate receiving the higher number of votes in the second ballot shall be elected.
5.4 In the event that the existing Chair or Vice-Chair is unable to complete his or her elected term, a temporary Chair or Vice-Chair may be appointed by the Steering Committee. A formal ballot shall then be initiated within one month to be completed within four months.
6. Decision Making Within the Steering Committee. 6.1 Voting in the Steering Committee is on a one Consortium Member (represented on the Steering Committee), one vote basis (subject to any such Consortium Member recusing itself, or being required by agreement of the Chair of the Steering Committee and the Program Director to recuse itself, from voting on a particular matter due to an actual or perceived conflict of interest).
6.2 The Steering Committee Chair and/or Vice-Chair are permitted to act as the voting Representatives of their respective organizations, if eligible to do so.
6.3 Each Consortium Member represented on the Steering Committee will declare its designated voting Representative at the start of any Steering Committee meeting. The LLC and each Consortium Member (and each Representative) may rely on any such declaration without further verification and without any requirement of confirmation in writing. Each Consortium Member in Good Standing, represented on the Steering Committee and entitled to vote shall conduct all its voting through its designated voting Representative.
6.4 Except as otherwise provided in this Agreement (including Section 6.5 of this Exhibit 4), a Steering Committee vote on a particular matter shall constitute valid Steering Committee action with respect to such matter as follows:
(a) if such matter relates to (i) election of Chair or Vice-Chair (or any other officer) of the Steering Committee or (ii) Steering Committee approval to release a SOSA Document for Company Review (or for publication review pursuant to Section 3.2.4 of Exhibit 2 if Company Review is not required by the Standards Process) pursuant to the Standards Process, then if such matter is approved by a Two-Thirds Vote of the Steering Committee; or
(b) otherwise, (i) if such matter is voted on at a meeting of the Steering Committee (whether held in person or by telephone conference or other appropriate means of electronic communication), then if (a) at least a majority of Consortium Members then in Good Standing and represented on the Steering Committee and entitled to vote with respect to such matter are present at such meeting and
(b) at least a majority of such Consortium Members so present cast affirmative votes with respect to such matter, or (ii) if such matter is voted on by written or electronic ballot (other than at a meeting of the Steering Committee, whether held in person or by telephone conference or other appropriate means of electronic communication) notice of which was given to all Consortium Members then in Good Standing and represented on the Steering Committee and entitled to vote (or if such notice was waived), then if affirmative votes cast with respect to such matter by such Consortium Members represent at least a majority of all votes (whether affirmative or negative, but disregarding for this purpose any abstentions) so cast.
6.5 As provided in Section 12.1 of the Agreement, any change to the Agreement made with the approval of the Steering Committee requires a Two-Thirds Vote of the Steering Committee. A Steering Committee vote to modify the Agreement requires a seven (7) day notification to each Consortium Member then in Good Standing and represented on the Steering Committee, unless waived by a TwoThirds Vote of the Steering Committee. There must be an opportunity for discussion on the motion. The vote must be conducted electronically unless at least 2/3 of the Consortium Members then in Good Standing and represented on the Steering Committee are present through their respective voting Representatives and there is unanimous agreement among such Representatives in attendance to waive the electronic vote requirement.
6.6 As provided in Section 5(b) of Schedule C, all determinations relating to the application of Sections 6.4 and 6.5 of this Exhibit 4 to a particular Steering Committee action shall be made by the Program Director.
6.7 At the Program Director’s request, a motion brought forward to the Steering Committee for consideration will be submitted in writing and will follow the format recommended by the Program Director.
6.8 Voting may occur verbally during a meeting or electronically outside a meeting. A motion can be passed based on a verbal vote provided the number of affirmative votes meets the requirements for passage.
6.9 Any Consortium Member then in Good Standing and represented on the Steering Committee may call for any vote to be conducted electronically and anonymously.
6.10 If a verbal vote on a motion is held but does not meet the requirements for passage, the motion must be referred for an electronic vote.
6.11 To conduct an electronic vote, a minimum period of seven (7) calendar days is required for balloting. Notification via email to all Consortium Members then in Good Standing and represented on the Steering Committee is required. The subject line of the notification email shall include the words “SOSA Vote” (or words of similar import) to call attention to the fact that it is a request for voting. Electronic voting will be carried out by e-mail or by means of an online procedure specified by the Program Director (which procedure may involve the use of a Plato Poll or similar polling/balloting facility). In the event that a Consortium Member otherwise entitled to vote is unable to vote electronically, the Consortium Member may request the Program Director to cast such Consortium Member’s vote on the Consortium Member’s behalf. The Steering Committee (through the Chair or ViceChair) or the Program Director may extend the electronic balloting period as circumstances may require. In all instances, it is the intent to have the voice of all represented Consortium Members heard.
6.12 Review and approval of an “individual” document submitted to the Steering Committee shall be conducted in accordance with Chapter 3 of Exhibit 2. Approval of Work Product represented by a composition of documents (such as a standard in its entirety) shall be treated as a separate resolution for consideration and approval by the Steering Committee. 7. Standing Committee/Working Group Decision Making.
7.1 Standing Committees and Working Groups operate on informal consensus on a per participant basis. Rules for developing consensus may (but are not required to) be stipulated by the Steering Committee as part of Standing Committee’s or Working Group’s charter.
7.2 All draft documents completed by a Standing Committee or Working Group shall be considered to be, and treated as, a recommendation to be forwarded to the Steering Committee for consideration and approval. No decisions made at the Standing Committee or Working Group level are considered binding on the Consortium as a whole unless and until the applicable decision is approved by the Steering Committee (or as may be otherwise required by the Agreement).
7.3 A Chair and Vice-Chair may be selected from within a Standing Committee or Working Group, either by the Steering Committee, or as part of a membershipwide nomination process as instructed by the Steering Committee, with a Steering Committee vote on the nominated candidates. The term of service of the Chair and Vice-Chair shall be defined within the Standing Committee’s or Working Group’s charter. In the event that the position of an Officer within a Standing Committee or Working Group is vacated during their term, the Steering Committee shall elect the method by which a replacement will occur.
8. Conduct of All Steering Committee, Standing Committees and Working Group Meetings.
8.1 The Steering Committee shall meet at least once every 3 months. A Standing Committee or Working Group that fails to meet for a period of 6 months shall be deemed to be inactive and may be disbanded and its charter revoked by the Steering Committee.
8.2 Meetings may be held face-to-face or by means of teleconferencing or other communications equipment whereby all participants in the meeting can hear each other.
8.3 A seven (7) calendar day notice to the designated Representatives of each Consortium Member then represented on the Steering Committee shall be given for all Steering Committee meetings. The notice requirement may be waived by a Two-Thirds Vote of the Steering Committee.
8.4 The schedule of meetings shall be maintained on the web page of the group concerned (Steering Committee, Standing Committee or Working Group), together with any logistic information necessary to allow Representatives to participate in audio or video conferences, or attend a face-to-face meeting.
8.5 The Chair of the Steering Committee, a Working Group or Standing Committee (as applicable) shall publish or email an agenda appropriate to the group at least 24 hours before the start of the meeting, containing all items known at the time of publication (provided that action on additional items may be taken at the meeting of the Steering Committee, a Working Group or Standing Committee (as applicable) regardless of whether they were included in the agenda or known at the time of publication, subject to otherwise applicable quorum and voting/approval requirements).
8.6 The Secretary of the Steering Committee, Standing Committee or Working Group shall produce minutes to be published to the Consortium or be posted on the website appropriate to the Steering Committee, Standing Committee or Working Group as soon as is practicable after the meeting. Exhibit 5
Trademark Usage Guidelines
SOSA™ and the SOSA™ Logo ("the Trademark(s)") are trademarks of The Open Group used in connection with Sensor Open System Architecture open standards, guides, products, services and certification of conformance. Proper use of SOSA™ reinforces its role as a brand and helps prevent it from becoming a generic name that can be used by anyone. We ask that you help us protect our mark by adhering to these correct usage guidelines. However, of themselves, these guidelines do not grant permission to use any trademark.
Please note that SOSA™ may not be used:
As a generic term;
In connection with products, unless the product is licensed to use the mark,
In conjunction with product names, domain names, business names, logos and similar usage without prior permission from The Open Group;
With or in connection with words (such as but not limited to "certify(ied)", "conformant", "accredited", "official", "approved" "guaranteed" "recognized") that imply certification of conformance where none has been granted by the SOSA Certification Authority (CA);
With or in connection with "compliance".
In any way that could cause confusion as to sponsorship, affiliation, or endorsement by The Open Group or The Open Group SOSA Consortium.
When using the Trademark:
The SOSA Consortium is actively developing a conformance program, under which products may be certified as conforming to the SOSA Technical Standard. When this conformance program is launched, the Trademarks may only be used in connection with products certified under the conformance program. Until that time, NO USE may be made of the Trademarks on or in connection with product, EXCEPT THAT, it is acceptable to use the following:
Correct: developed in alignment with the SOSA™ Technical Standard
In proposals, editorial or articles, but not in advertising, the Trademark may be used without prior permission, provided that the rules in our Trademark Usage Guidelines are followed. In all other cases, obtaining prior permission is required.
Detailed guidelines referring to the visual presentation, graphical design, form, and manner of use must be followed. The Trademarks must always be used in white around them and must never be superimposed on or used in association with other graphics or trademarks. In print, whenever and wherever the Trademarks appear, they must be distinguished from the surrounding text. This applies to all forms of printed media, including advertising copy, product packaging, brochures, manuals, internal memoranda, editorial, articles, press releases, correspondence, projected and handout presentation materials, and to computer or other digital electronic device video screens. Methods of distinguishing the Trademark include printing it in UPPER CASE, italicized font, bold-faced font or placing the Trademark in "quotation marks".
The Trademark should be used as an adjective, not as a noun, and always be followed by the common generic (dictionary name) of the product: For example: SOSA Technical Standard, SOSA Conformance, SOSA Reference Implementation Guide, SOSA Business Practices, SOSA Conformance Program, SOSA Conformance Policy, SOSA Conformance Certificate, SOSA Business Guide, SOSA Contract Guide, SOSA Data Model, SOSA Enterprise Architecture Work Products, SOSA tools, SOSA Conformance Test Suite, SOSA SDKs, SOSA ITKs, SOSA work products, SOSA artifacts, SOSA Warranty of Conformance, SOSA data rights, SOSA Library, SOSA Registry, SOSA Repository, etc.
Never use the Trademark as a verb.
Never use the Trademark with the word "complian(t)(ce)"
Incorrect: ABC company has a SOSA Compliant product.
Never use the Trademark in plural form
Correct: ABC company and EFG company use the same systems that specify the SOSA standard
Incorrect: ABC company and EFG company use the same SOSAs
Never use the Trademark in possessive form:
o o o o
Correct: The SOSA application programming interface specifications
Incorrect: SOSA’s programming interfaces.
Correct: The structure of the SOSA documentation
Incorrect: The structure of SOSA’s documentation
Refrain from hyphenating a Trademark:
o o o o o o o
Correct: SOSA component-based
Incorrect: SOSA-based, SOSA-like
Correct: connecting applications to SOSA architectures
Correct: SOSA Conformant
Incorrect: SOSA-Compliant, SOSA Compliant The Trademarks should never be combined to form a new word, combined with other words, be hyphenated, or abbreviated:
o Incorrect: SO*A o Incorrect: SOSAy o Incorrect: SOSA <product name>, SOSA<product name> o Incorrect: non-SOSA • The Trademarks should never follow another acronym or proper name, which could be perceived as a new trademark containing the SOSA acronym: o Correct: SOSA COTS Solutions, or SOSA Solutions based on COTS products o Incorrect: COTS SOSA™ Solution o Correct: SOSA representatives from XXX o Incorrect: Company XXX SOSA representatives o Correct: SOSA APIs from SPIES Standard, or SOSA APIs based on SPIES o Incorrect: POSIX SOSA APIs
An acknowledgment is required whenever a Trademark of The Open Group is used. The Trademark attribution is important as it reminds competitors, licensees, customers, and others that The Open Group claims exclusive rights in the marks. The correct acknowledgment is:
SOSA™ and logo design and The Open Group Certification Mark™ are trademarks of The Open Group in the United States and other countries.
You should always mark the first or most significant occurrence of the Trademark as appropriate and must place the required attribution as a footnote. The attribution should use the ® symbol for a registered trademark and the ™ symbol for an unregistered trademark.
Please note that:
It is acceptable to use an asterisk in place of the trademark symbol where the medium used (for example, electronic mail) cannot reproduce the ® or ™ symbols. However, this is not intended to authorize use of the asterisk as the norm.
You may translate the trademark attribution to national language(s).
Blanket or generic attributions (such as ‘‘All trademarks are the property of their respective owners’’) are not acceptable.
Individual trademarks may be acknowledged. COPYRIGHT PERMISSIONS
Fair use extracts from our published Materials is permitted when referencing the SOSA™ Technical Standard for Sensor Open Systems Architecture and its updates with the appropriate citations, copyright, and trademark acknowledgement/attributions. For your ready reference, the following examples of appropriate wording may be used:
™ symbol is affixed after mention of SOSA in titles and headers: SOSA™
Footnote citation/attribution: SOSA™ Technical Standard for the Sensor Open System Architecture, Edition 1.0, © 2017 The Open Group. SOSA is a trademark of The Open Group in the United States and other countries.
Publication front matter acknowledgement/attribution (as applicable): "xxxx acknowledges The Open Group for permission to include text/figures derived from its copyrighted SOSA™ Technical Standard for the Sensor Open System Architecture, Edition 1.0. SOSA is a trademark of The Open Group in the United States and other countries."
Illustrations should include the copyright mark:
©The Open Group.
When acknowledging excerpts from other SOSA publications, replace the italicized title, edition and year of publication in the example above with the actual title, edition and year of publication of the SOSA document being referenced.