Adopted as of February _18_, 2014

Transcription

1 THE OPEN DATA CENTER ALLIANCE, INC. ANTITRUST POLICY (Version 2) Adopted as of February _18_, 2014 The Open Data Center Alliance, Inc. (the ODCA ) intends to conduct its affairs in compliance with the antitrust laws of the United States and, as applicable, the antitrust laws of the states within the United States and the antitrust/competition laws of other countries (collectively, the Antitrust Laws ). The Antitrust Laws are intended to preserve and promote free, fair, and open competition. This competition benefits consumers and companies that are innovative and efficient. A violation of the Antitrust Laws can have serious consequences for the ODCA and for participating companies. Accordingly, the ODCA has adopted this Antitrust Policy ( Policy ) for itself, its members, directors, officers, employees, and agents, and for all attendees, licensees, customers, and other participants (collectively, Participants ), as guidance in connection with participation in the ODCA s activities. At all meetings of the Board of Directors, any Steering Committee, or of any other committee, subcommittee, or work group (each, a Committee ) of any of the foregoing, a statement substantially similar to the following will be read at the beginning of the meeting: This is a reminder that all Open Data Center Alliance activities are subject to strict compliance with Open Data Center Alliance s Antitrust Policy. Each individual participant and attendee at this meeting is responsible for knowing the contents of the Antitrust Policy, and for complying with the Antitrust Policy. Copies of the Antitrust Policy are available at: 1. The ODCA and its Committees or activities shall not be used for the purpose of bringing about or attempting to bring about any understanding or agreement, written or oral, formal or informal, express or implied, between and among competitors regarding their prices, terms or conditions of sale, distribution, volume of production, product development or introduction plans, territories, customers, or credit terms. 2. In connection with participation in the ODCA, there shall be no discussion, communication, agreement, or disclosure among Participants that are actual or potential competitors, regarding their current or projected prices or any elements of prices, including price differentials, discounts, allowances, pricing methods, profits, profit margins, cost data, or terms or conditions of sale or licensing of products or services, production plans, capacities, market shares, sales territories, geographic or product markets, allocation of territories or customers, information on the timing, cost, or volume of research and development projects, production or sales, or information on bids, intentions to bid, procedures for responding to bid invitations, or specific contractual arrangements. 3. Each Participant is obligated and expected to exercise its independent business judgment in pricing its services or products, dealing with its customers and suppliers, and choosing the markets in which it will compete. 4. The ODCA and the Participants, in connection with their participation in the ODCA, shall not enter into any agreement or understanding among themselves to refrain, or to encourage others to refrain, from purchasing any raw materials, product, equipment, services, or other supplies from any supplier or vendor, or from dealing with any supplier or vendor; provided however, that this Policy shall not preclude the ODCA or any Participant from asserting its intellectual property rights. 5. The ODCA and the Participants, in connection with their participation in the ODCA, shall not attempt to prevent any person from gaining access to any market or customer for goods and services, or attempt to prevent any person from obtaining a supply of goods or services or otherwise purchasing goods or services freely in the market; provided however, that this Policy shall not preclude the ODCA or any Participant from asserting its intellectual property rights. 6. The qualifications for participation in the ODCA are as established by the Certificate of Incorporation and Bylaws of the ODCA, and to the extent not inconsistent with the Certificate of Incorporation and Bylaws, by the Board of Directors. No Participant shall be excluded from a Committee for an anti-competitive reason. 7. To the extent that the ODCA develops, administers or approves guidelines, standards, specifications, test procedures, or certification programs, a Participant s decision to adhere to or participate therein shall be voluntary on the part of the Participant, and shall in no way be compelled or coerced by the ODCA; provided however that this guideline shall not prevent the ODCA from adopting testing and certification programs, as well as logo and trademark usage requirements tied to adherence with the ODCA s guidelines, standards, specifications, test procedures, or certifications programs. 1 ANTITRUST POLICY

2 8. Guidelines, specifications, standards, test procedures, and certification programs, which may be developed, administered, approved, or adopted by the ODCA, shall be based upon appropriate technical, business, and consumer considerations, and shall not be based upon any effort or purpose to reduce or eliminate competition in the sale, supply, and furnishing of products and services. 9. The ODCA may condition use of its trademarks, logos, and other intellectual property, on compliance with terms and conditions developed to regulate the use of and to protect such intellectual property, and otherwise to maintain and enforce a compliance certification program in accordance with agreed terms and conditions and in conformity with the Antitrust Laws. Such terms and conditions may include a requirement of adherence with the ODCA s guidelines, standards, specifications, test procedures, or certifications programs. The ODCA also reserves the right to take appropriate action against any individual or entity which engages in false or misleading advertising regarding the use of or compliance with the ODCA s guidelines, standards, specifications, test procedures, or certification program. 10. In conducting any meeting of the Board of Directors, or any Committee, the chairperson or secretary at the meeting shall prepare and follow a formal agenda. Minutes of all such meetings shall be maintained, and shall accurately reflect the subjects discussed and any actions taken. 11. During the course of the activities of the ODCA, or at any event sponsored or co-sponsored by the ODCA, Participants should refrain from disclosing to any other Participant any information that is not reasonably related to the legitimate purposes of the ODCA. 12. The ODCA and each Participant, in connection with the activities of the ODCA, shall use their best efforts to comply with the Antitrust Laws. 13. The ODCA shall appoint and maintain an Antitrust Counsel to provide legal advice to the ODCA, and to take reasonable steps to actively supervise the ODCA s compliance with the Antitrust Laws. The Antitrust Counsel shall be: (i) a lawyer who is admitted to practice law in one or more States of the United States, and who is not employed by and does not represent any Participant in matters related to the ODCA; or (ii) a law firm that employs a lawyer who is admitted to practice law in one or more States of the United States, and that does not represent any Participant in matters related to the ODCA. 14. The Antitrust Counsel shall periodically provide training to the Board of Directors, any Chairs of any committees, or to any employees or agents of the ODCA concerning an overview of the Antitrust Laws as they apply to the ODCA s activities, behavior, and conduct. 15. Any Participant may report to the Antitrust Counsel or to the Board of Directors any actual or potential violation of this Policy or the Antitrust Laws by any Participant, without fear of retaliation of any kind. 16. The ODCA reserves the right to take any and all reasonable and appropriate disciplinary actions against any Participant who fails to comply with this Policy or the Antitrust Laws in connection with their participation in the ODCA. 17. The terms and conditions of Appendix A, which contains the ODCA s No Vendor Bias Policy, are incorporated in their entirely into this Policy by this reference. 18. This Policy shall be promulgated to all Participants and all Participants shall abide by this Policy. 2 ANTITRUST POLICY

3 CERTIFICATE OF SECRETARY I, the undersigned, do hereby certify: 1. That I am the Secretary of the Open Data Center Alliance, Inc. 2. That the foregoing Antitrust Policy (Version 2.0) constitute the Antitrust Policy of the said corporation adopted by the Board of Directors as of February _18_, ANTITRUST POLICY

4 APPENDIX A NO VENDOR BIAS GUIDELINES 1. Defined Terms 1.1 ODCA No Vendor Bias Document means: (i) all Requirements Documents, including without limitation, all Draft Requirements Documents and Final Requirements Document, as such terms are defined in the Bylaws or in any Documents Policy of the ODCA; (ii) any other ODCA document that contains any official ODCA position or policy statement; or (iii) any other ODCA document which contains, or is otherwise stamped with, the ODCA No Vendor Bias Label as defined herein. 1.2 ODCA No Vendor Bias Label has the meaning as set forth in Section 3.2 below. 1.3 No Vendor Bias Policy has the meaning as set forth in Section 2.1 below. 1.4 Any capitalized term not otherwise defined herein shall have the meaning set forth in the ODCA s Bylaws. 2. No Vendor Bias Policy 2.1 No Vendor Bias Policy. No Participant will engage in any acts or omissions involving the creation, contribution to, or approval of, any ODCA No Vendor Bias Document that promote or require use of any proprietary technology or other Contribution (as defined in the Bylaws) in which such Participant and/or its Affiliates (as defined in the Bylaws) has a commercial interest (hereinafter, the No Vendor Bias Policy ). 2.2 Overall Intent of the No Vendor Bias Policy: ODCA understands that Participants often have a general commercial interest motivating their decision to join and participate in the ODCA. However, the ODCA s purpose in implementing the No Vendor Bias Policy is to ensure that the ODCA No Vendor Bias Documents are developed based primarily on technical merit according to the consensus of Work Group members. Thus, the underlying intent of the No Vendor Bias Policy is to create a neutral environment in which Participants may create, contribute to, or participate in the approval of (as applicable), ODCA No Vendor Bias Documents without a dependency on a specific vendor or vendor s technology or intellectual property. 2.3 Clarifications: In view of the above outlined intent of the No Vendor Bias Policy, the ODCA provides the following clarifications about the No Vendor Bias Policy: Clarification about acts or omissions language: With regard to the above terms acts or omissions : (a) Acts is intended to mean the Participant knowingly undertakes the applicable act. (b) Omission is intended to mean the Participant intentionally engaged in the applicable omission. (c) Also, the above described acts or omissions of the Participant will be evaluated with reference to the activities of the Participant s representatives that participate in the applicable ODCA activities Clarification about promote or require use of any proprietary technology or other Contribution language: With regard to the above promote or require use of any proprietary technology or other Contribution clause: (a) It is understood that: (i) a Participant may openly describe and discuss the Participant s proprietary technology during various ODCA activities, including providing an explanation of how its proprietary technology may relate to ODCA s general or fundamental requirements, in order to further the open creative development process at ODCA; and (ii) a Participant may have a general commercial interest behind its decision to join and participate in the ODCA. (b) The intent of the clause promote or require use of any proprietary technology or other Contribution in the above No Vendor Bias Policy is that a Participant should introduce its proprietary technology or its Contribution absent a deliberate intent of creating a dependency on the Participant s proprietary technology 4 ANTITRUST POLICY

5 (in such a way as to have an anti-competitive effect under Antitrust Laws) when parties implement the applicable ODCA No Vendor Bias Document. 3. Identification of ODCA No Vendor Bias Documents; No Vendor Bias Label; Other Labeling. 3.1 Identifying No Vendor Bias Documents. If any ODCA Work Group or any other ODCA official is unable to determine whether or not a document should be designated as an ODCA No Vendor Bias Document pursuant to paragraph 1.1(i) or (ii) herein, then the issue can be referred to the TCC for a final determination in accordance with the ODCA s Work Group and Technical Coordination Committee Policy, as amended from time to time. 3.2 No Vendor Bias Label. All ODCA No Vendor Bias Documents should contain the following label ( ODCA No Vendor Bias Label ): THIS DOCUMENT WAS CREATED WITH THE INTENT THAT IT BE SUBJECT TO THE OPEN DATA CENTER ALLIANCE, INC. S ( ODCA ) NO VENDOR BIAS POLICY, WHICH IS PART OF THE ODCA S ANTITRUST POLICY. COPIES OF THE ODCA S FULL ANTITRUST GUIDELINES ARE AVAILABLE ON THE ODCA S WEBSITE AT Disclaimer In Other ODCA Documents. Any ODCA document that is not an ODCA No Vendor Bias Document may contain (but is not required to contain) the following disclaimer: 4. Vendor Bias Committee (VBC) THE OPEN DATA CENTER ALLIANCE, INC ( ODCA ) MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, THAT THIS DOCUMENT WAS DEVELOPED OR CREATED IN COMPLIANCE WITH THE ODCA S NO VENDOR BIAS POLICY (WHICH POLICY IS A PART OF THE ODCA S ANTITRUST POLICY). 4.1 Creation. The Board of Directors of the ODCA may appoint a standing Vendor Bias Committee ( VBC ), comprised of not less than three members (who do not have to be Directors). 4.2 Authority. The VBC shall have plenary authority to enforce the Compliance Procedures set out in this Section 5, except as otherwise expressly provided herein. 4.3 Membership on VBC. Any Director (as defined in the Bylaws) may nominate any person to serve as a member of the VBC (a VBC Member ). VBC Members must be elected, and may be removed, by a vote of Board of Directors pursuant to the quorum and voting requirements of the Bylaws. The Board of Directors may vote to replace any vacancy on the VBC. Each VBC Member shall serve until his or her death, resignation or removal; provided, however, membership as a VBC Member shall automatically end at such time as the VBC s Member s company is no longer a Participant of the ODCA. 4.4 VBC Chairperson. The Chairperson of the VBC (the VBC Chair ) must be elected, and may be removed, by a vote of Board of Directors pursuant to the quorum and voting requirements of the Bylaws. The Chairperson of the VBC shall convene and chair all regular and special sessions of the VBC, set agendas for VBC meetings, and determine and communicate to management and the full Board the information needs of the VBC. 4.5 Meetings. The VBC shall meet as frequently as circumstances dictate. The VBC Chair may call meetings of the VBC. A majority of all VBC Members shall constitute a quorum of the VBC. A vote of the majority of the VBC Members at a meeting at which a quorum is present shall be the act of the VBC. In addition, any action that is required or permitted to be taken by the VBC at a meeting may be taken without a meeting if a majority of the members of the full VBC consent in writing or by electronic transmission, setting forth the action so taken. For purposes of this Policy, consent shall be given electronically if an is sent from the address of a VBC Member matching the address of such VBC Member on the records of the ODCA and such clearly sets forth the action to be taken and the VBC Member s consent to such action. 5. Compliance Procedures 5.1 Initiation of Compliance Procedures 5 ANTITRUST POLICY

6 Guidelines The VBC has the authority to monitor a Participant s ongoing compliance with the No Vendor Bias Any Director, TCC member, Work Group member, or other Participant may forward information to the TCC chair, a Working Group chair, or directly to the VBC Chair, relating to the compliance of a Participant with the No Vendor Bias Guidelines However, any inquiry pursuant to these No Vendor Bias Guidelines as to whether a Participant has acted other than in compliance with these No Vendor Bias Guidelines may only be initiated by one or more of the following (hereinafter, an Initiating Party ): (i) a member of the Board of Directors; (ii) a member of the VBC; and (iii) the TCC chair or the Work Group chair of the Work Group in which the applicable Participant participates in Upon receipt of material information from one of the Initiating Parties identified in Section above that a Participant has acted other than in compliance with these No Vendor Bias Guidelines ( VB Complaint), the Work Group chair shall submit a summary written notification of the VB Complaint to the VBC Chair, with a copy to the other VBC members, the Chairman of the Board of Directors, and the ODCA s Antitrust Counsel. 5.2 Initial Compliance Action Upon receipt of a VB Complaint, the VBC Chair shall call for a meeting of the VBC (in person or telephonically) to evaluate the information. The VBC shall endeavor to hold said meeting within five business days after receipt of the VB Complaint by the VBC Chair The VBC Chair shall direct the VBC to take one of the following actions: (i) Determine that the VB Complaint requires no further investigation and should be dismissed. If the VB Complaint is dismissed, the VBC Chair or his/her appointee shall write a confidential memo to the file, with a copy to the Chair of the Board of Directors, summarizing the reasons that further compliance action is unwarranted; or (ii) Conduct further investigation and draft an Initial Report ( Initial Report ) indicating suggested action Any further investigation will be conducted confidentially, provided, however, information arising out of the investigation (including with limitation the Initial Report) may be shared as necessary, as reasonably determined by the VBC Chair, with those Participants who are directly involved in the investigation, those who are witnesses, the members of the VBC, the members of the Board of Directors, and the ODCA s Antitrust Counsel The Initial Report shall be drafted and presented to the Participant who is the subject of the VB Complaint within approximately fourteen business days after the VB Complaint is received by the VBC Chair The Participant who is the subject of the VB Complaint may respond in writing to the Initial Report, which response shall be incorporated into the Initial Report; provided, however, such response must be received by the VBC Chair within a reasonable time period established by the VBC Chair If after review of the Initial Report, including the Participant s response thereto, the VBC finds that it is more likely than not that the Participant has acted other than in accordance with these No Vendor Bias Guidelines, the VBC Chair shall issue a letter indicating in detail the reasons for the finding ( Compliance Letter ). The Compliance Letter shall also direct the Participant that it has thirty calendar days from the date of the Compliance Letter to: (i) bring itself into full compliance with these No Vendor Bias Guidelines; or (ii) resign its membership in the ODCA The decision by the VBC in this Initial Compliance Action process as set forth in this Section 5.2 and as set forth in its Compliance Letter is final and un-appealable. 5.3 Further Compliance Action Within approximately thirty calendar days after the Participant who has been the subject of the VB Complaint receives the Compliance Letter, the VBC Chair or his/her delegate shall investigate said Participant s compliance with its choice made under Section above and report to the VBC If the VBC finds probable cause to believe that the Participant is not fully complying with its choice made under Section above, the VBC shall: (i) investigate as necessary; (ii) draft a Further Report ( Further Report ) 6 ANTITRUST POLICY

7 incorporating the Initial Report and suggesting any additional course of action; and (iii) forward the Further Report to the Board of Directors Upon receipt of the Further Report, the Board of Directors or its appointed subcommittee or designee shall respond with a Preliminary Final Report within approximately fourteen calendar days ( Preliminary Final Report ) Said Preliminary Final Report shall be provided to the Participant who has been the subject of the VB Complaint, who will have a reasonable period of time, as determined in consultation with the VBC, from the date of the Preliminary Final Report to file a written response ( Response ) with the Board of Directors Within approximately thirty days after receiving the Response, the Board of Directors or its appointed subcommittee or designee shall issue a Final Report, containing: (i) A full finding of the facts surrounding the Initial Compliance Action as set forth in Section 5.2 and the Further Compliance Action as set forth in Section 5.3 (together, the Compliance Action ); (ii) A summary of the positions taken by the Participant (including, but not limited to, any set forth in its Response), the VBC, and the Board of Directors during the Compliance Action; and (iii) An appropriate order setting out the remedy it deems appropriate. Said remedy may include, without limitation: (a) a dismissal of the VB Complaint, in full or in part; (b) an order directing the Participant to take further action to bring itself into full compliance with these No Vendor Bias Guidelines; (c) an order removing the Participant from the ODCA; and/or (d) any other order the Board of Directors deems appropriate in compliance with applicable law, including the Certificate of Incorporation and Bylaws of the ODCA. 7 ANTITRUST POLICY