PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, DC.
`
`In the Matter of
`
`
`
`CERTAIN ELECTRONIC DEVICES,
`
`INCLUDING MOBILE PHONES, TABLET
`COMPUTERS, AND COMPONENTS
`THEREOF
`
`
`
`
`Inv. No. 337-TA-1038
`
`ORDER NO. 26:
`
`INITIAL DETERMINATION GRANTING JOINT MOTION TO
`TERMINATE THE INVESTIGATION BASED ON SETTLEMENT
`AGREEMENT
`
`(August 8, 2017)
`On June 7, 2017, Complainant Nokia Technologies Oy (“Nokia”) and Respondent-Apple
`
`Inc.
`
`(“Apple”) filed a joint motion (1038-023) to terminate the Investigation based on a
`
`settlement agreement and related agreements.1 On June 19, 2017, the Commission Investigative
`
`Staff (“Staff”) filed its response. Staff does not oppose the joint motion.
`
`The Commission’s Rules provide that ‘f[a]ny party may move at any time. for an order to
`
`terminate an investigation in whole or in part as to any or all respondents on the basis of
`
`settlement, a licensing or other agreement .
`
`.
`
`.
`
`.”
`
`19 C.F.R. § 210.21(a)(2); see also Certain
`
`Organizer Racks and Prods. Containing Same, Inv. No. 337-TA-466, Order No. 7 at 2 (Feb. 19,
`
`2001). In the instant proceeding, the motion to terminate is based upon a Settlement Agreement
`
`and related agreements, which appears to resolve the dispute between Nokia and Apple. Copies
`
`1 On June 13, 2017, Nokia and Apple were directed to provide a modified version of the public settlement agreement
`with fewer redactions. (See Order No. 23.) On July 7, 2017, pursuant to Order No. 23, they filed a modified public
`version of the settlement agreement. On July 19, 2017,
`the Commission determined to review the initial
`determination granting a joint motion to terminate the investigation based on a Settlement Agreement and related
`agreements in Inv. No. 337-TA-1039, which included the same agreements at issue in this Investigation. Upon
`review, the Commission determined that the parties’ July 7th submission did not comply with Commission Rules
`210.21(b)(1) and 201.6 and remanded the investigation to ALJ McNamara to require the parties to file a revised
`public version of the agreements. On July 28, 2017, pursuant to Order No. 29 in Inv. No. 337-TA-1039, Nokia and
`Apple filed their joint supplemental submission. On August 1, 2017, they filed an updated joint supplemental
`submission in this Investigation, reflecting the updates submitted in the 1039 Investigation.
`
`

`

`of the agreements are attached hereto as Exhibits 1—4. Consistent with 19 C.F.R. § 210.21(b)(1),
`
`Nokia and Apple state that “[t]he Settlement and Release Agreement .
`
`.
`
`. reflect the entire and
`
`only agreement between Nokia and Apple regarding the subject matter of this Investigation” and
`
`that “there are no other agreements, written or oral, express or implied, between Nokia and -
`Apple regarding the subjeCt matter ofthis Investigation.” (Mot. at 1-2.)
`
`In any initial determination terminating an investigation by settlement agreement or
`
`consent order, the administrative law judge is directed to consider and make appropriate findings
`
`regarding the effect of the proposed settlement on the public health and welfare, competitive
`
`conditions in the United States economy, production of like or directly competitive articles in the
`
`United States, and United States consumers. l9 C...FR § 210.50(b)(2). Nokia, Apple, and Staff
`
`assert that it is in the interest of the public and administrative economy to grant this motion
`
`because “Commission policy and the public interest generally favor settlements.” (Mot. at 2;
`
`Staff Resp. at 3-4.) The undersigned agrees that termination ofthis Investigation does not impose
`
`any undue burdens on the public health and welfare, competitive conditions in the United States
`
`economy, production of like or directly competitive articles in the United States, or United States
`
`consumers.
`
`Accordingly, it is the undersigned’s Initial Determination that the joint motion (103 8-
`
`021) to terminate this Investigation based on a settlement agreement and related agreements be
`
`granted. This Initial Determination, along with supporting documentation, is hereby certified to
`
`the Commission.
`
`Pursuant
`
`to 19 C.F.R.§ 210.42(h),
`
`this
`
`Initial Determination shall become the
`
`determination of the Commission unless a party files a petition for review of the Initial
`
`Determination pursuant to 19 C.F.R. § 210.43(a), or the Commission, pursuant to 19 C.F.R.
`
`

`

`§210.44, orders, on its own motion, a review of the Initial Determination or certain issues
`
`herein.
`
`SO ORDERED.
`
`/
`
`Charles E. Bullock
`Chief Administrative Law Judge
`
`

`

`Exhibit 1
`
`'
`
`

`

`”Date: Mafia-2017'
`
`7(1) NOKIACORPORATI'ON :
`
`(2)- ArPLEINc.
`
`.
`
`
`
`
`
`SETTLEMENT‘3 AND REL'f1”? EAS1
`
`EAGREEMENT :
`
`_
`
`

`

`This SETI‘LEMENT AND RELEASE AGREEMENT (this “Settlement Agreement”) is
`entered into and effective on the date of last signature of this Settlement Agreement (the.
`“Settlement Agreement Effective Date”)
`
`BETWEEN
`
`(I)
`
`(2)
`
`NOKIA CORPORATION a public corporation validly Organized and existing under
`the laWS of Finland, with corporate identifier 0112038—9, and having its principal
`offiCe at Karaportti 3, FL02610 Espoo, Finland (hereinafter referred to togetherwith
`its Affiliates as “Nokia”), and
`
`APPLE INC., a corporation Validly organized and existing under the laws of California,
`USA and having its principal office at 1 Infinite Loop, Copertino, California 95014
`USA (hereinafter referred to together with its Affiliates as “Apple7’),
`
`(each ofNokia and Apple a “Party” and collectively the “Parties”)'s.
`
`RECITAIS
`
`(A) WHEREAS, the Parties have been engaged inpatent licensing discussions and patent—
`related litigation and investigations worldwide,
`
`(B) WHEREAS, Apple and Nokia intend to enter'into a Global: Patent License Agreement
`(the “Global Patent License Agreement”) simultaneously herewith to acquire
`from one another certain patent rights, as set forth therein, and
`
`(C) WHEREAS the Parties now desire to settle all litigations and investigations under
`this Settlement Agreement, whereby the Parties are entering into a full, final,
`complete and gIobal settlement of the subject matter of such litigations and
`investigations, all on the terms and conditions set forth herein
`
`NOW, THEREFORE, in censideration of the above premises and in reCognition of all of the
`consideration described herein, including risk mitigatiOn, the Parties agree generally as,»
`follows and specifically as described in the Schedules Inferenced below:
`
`OPE-RATIVE PROVISIONS
`
`1,
`
`DEFINITIONS AND INTERPRETATION
`
`'“Afliliate” of a Party or a Person shall mean any other Person, which now or
`hereafter, directly or indirectlyIs controlled by, such first mentioned Party or Person,
`but any such other Person shall be deemed to he an Affiliate only as long as such
`Control oxists, and for the purposes of this definition, “control” shall mean direct or
`indirect ownership or control of more than fifty" percent (50%) of a Per-sen by any
`means, including voting power, capital (it other securities or ownership Interests or
`the possession, directly or indirectly, of the power to direct or cause the direction of
`the management and policies of a Person, whether through ownership of voting:
`securities, by contract or otherwise. Apple represents to Nokia and Nokia rep1esents
`to Apple that, as of the Settlement Agteement EffectiVe Date, they both. are the
`
`

`

`ultimate parent companies Within their respective consdlidated groups and thus not
`under the control of any other party.
`'
`
`
`“Apple Actions” means (i) the actions or investigations listed as such in Schedule 1
`(ii) any action, claim, counterclaim, complaint or investigation filed or requested by
`Apple before any judicial, administrative or other governmental authority anywhere
`in the world prior to the Settlement Agreement Effective Date against Nokia directly
`or indirectly, (iii) any other action, claim, counterclaim, complaint or investigation
`filed or requested by Apple before any sueh authority or body prior to the Settlement
`Agreement Effective Date against Nokia Covered Products, and (iv) any inter partes
`review, reexamination, invalidity, opposition, revocation or nullity request filed or
`requested by Apple prior to the Settlement Agreement Effective Date and relating to
`any Nokia OoVered Patents or— .
`
`
`ii) Lieensable by Apple.
`
`“Apple Covered Product(s)” means any and all past, present, and future:
`
`“Apple Licensed Patents” means all Patents of Apple that are Licensable by Apple
`and are either:
`
`

`

`
`
`“Business Day”means any day thatis nota Saturday, Sunday or a public liohday111
`either California or Finland;
`
`“CDMAStandard(s) means the: (1) code d1v1smn muluple access (CDMA) based
`CDMA Standards as promulgated during the Term (1.13., pubhshed and adopted) by -
`ETA, TIA, 3GPP2 and/or similar bodies and/or their respective success61(s) including
`‘IS-95, cdmaOne, CDMA'2'ooo and CDMAzooo' EVrDO;‘a11d= (ii)- denvanves, updates
`and” other evolutions thereof as promulgated dunng the Term (1.12%.,pubhshed and
`adopted) by EIA, TIA, 3GPP2 and/“or similar bodies and-[or their respective
`successor(s), rowded that such- derivatives, Updates or evolutions do not,
`fundamentally alterthe techmcal character ofthe standard111- question '
`
`_
`
`“Cellular Communication Standard(s)” means the GSM Standards, the CDMA :
`Standards the UMTS Standards and the LTE Standards ‘
`
`“Cellular EssentialPatent(s)” means Patents. that are Fssenhal to oneor more of
`the Cellular Communication Standards but excludmg such Patents as to which the '
`Party'in quesnon has expressly stated (‘11 expressly states during the T’err11,‘111 writing,
`and during the standardization process, as Well as in full comphance with any
`applicable rules of the standard- settingorgamzanon in question governing refusals to
`license, that it does not mtend to license such Patents to 1mplementers of such _
`Cellular Communication Standard(s) For clarity,Apple Cellular Essential; Patents and “
`Nokia Cellular Essential Patents willbe construed accordmgly
`
`“Claims” means» any and all causes of11131101), damages, costs,.liahility and other types
`"of claim$1in law or eqfityfimyjurisdiction throughout the world".
`'
`
`‘l'Dives’ted Patéxit('_s)" means: Patents that are:
`
`""_
`
`For: theavoidanceof doubt,1'Diiies’ted Patents:
`
`

`

`Notwithstanding the above,
`
`“ESSentia ” shall mean as applied to any Patent(s) that:
`
`(a) .it is not possible, on technical (but not commercial) grounds taking into account
`normal technical practice and the state of the art generally available at the time of
`promulgation (i.e., publication and adaption) of the Cellular Communication
`Standard(s) in question, to make, use, import, export, sell, offer for sale or
`otherwise dispose of equipment or methods, which comply with the Cellular
`Communicatiou Standard(s) in question, without infringing one or more of the
`claims of such Patent;
`
`(b) such Patent(s) has been declared by a Party or an applicable patentee as essential
`or potentially essential for the Cellular Communication Standard(s)'- in question;
`01'
`V
`.
`
`
`
`“Framework Agreement” means that certain Framework Agreement, being
`entered into by the Parties simultaneously herewith.
`
`“GPLA Effective Date” means—
`
`“GSM Standard(s)” means the: (i) time division multiple access (TDMA) based
`GSM standards as promulgated during the Term (i.e., published and adopted) by
`ETSI, 3GPP, and/or similar bodies and/or their respective successor(s) including
`GSM, HSCSD, GPRS and EDGE; and (ii) derivatives, updates and other evalutions
`thereof as promulgated by ETSI, 3GPP and/or similar bodies and/or their respective
`successor(s) during the Term, provided that such derivatives, updates or evolutions
`do not fundamentally alter the technical character of the standard in question.
`
`

`

`“Have Made” means
`
`“Licensable means that the Partyin question at any time during the Term has the
`tight to release or otherwise grant tights or immunities under a Patent (whether by
`virtue of ownership or otherwise) consistent with the scope of releases, rights or
`immunities granted by the Party in question under this Settlement Agreement
`I without a requirement to obtain- 'a- consent from or to pay or grant any additional
`rights, immunities or consideration to any ThirdParty thh joint or exclusive control
`oVer the Patent (unless such Third- Party consents or the other Party, at its sole
`discretion, elects to pay or otherWise giant the requisite rights,
`immunities or
`iconSideration) Ifa Party so has the right to grant a release or Other rights or
`immunities to the other Party under a Patent thatis more limited thanrequired by the
`release or other grants set forthin this Settlement Agreement, then such Patent will
`nonetheless be deemed Licensable to the maximum extent possible. Fer clarity,
`Licensable by Apple and: Licensable by Nokia will be construed accordingly Nelda
`represents and warrants to Apple and Apple represents and warrants to Nelda that
`any above mentioned requiteniei‘it‘s to obtain a consent from or to pay or grant any
`additional rights, immunities or considerationinvolving them respectively are not
`. specific to the ether Partyin question.-
`
`“Licensed Patents” means Nelda Heensed Patents and Apple Licensed. Patents.
`
`“LTE Standard(s)”means the: (i) orthogonal frequency divisioii multiplexmg based
`LTE standardsas promulgated during the Term (i-e.,published and adopted) by ETSI,
`igGPP, and/or similar bodies and/or their respective successors including, withOut'
`limitation, LTE LTE Advanced and SAE operating in any frequency band; and (ii)
`.iderivati‘ves, updates and other evolutions thereof as promulgated during the Term by
`ETSI, gGPP', and/or similar bedies and/Oi their respective successor(s), provided that
`such derivatives, updates or evolutidns’ do not fundamentally alter the technical
`character of the standardin question
`
`

`

`
`“Nokia Actions” means (i) the actions or investigation-s listed as such in Schedule 1
`(ii) any aetion, claim, counterclaim, complaint or'investigati'on filed or requested by
`Nokia before any judicial, administrative or'othe'r governmental authofity anywhere
`in the WOrld prior to the Settlement Agreement Effective Date against Apple directly
`or indirectly, (iii) any other action, claim, ecunterclairn, complaint or investigation
`filed'o-‘r "requested by Nokia before. any such authority or body prior to the Settlement
`Agreement Effective Date against Apple Covered Products, and (iv), any inter partes
`review, reexamination, invalidity, opposition, revocation or nullity request filed or
`requested by Nokia prior to the Settlement Agreement Effective Date and relating to
`any Apple Covered Patents or—
`
`“Nokia Covered Product(s)” means any and all past, present and future:
`
`(A)
`
`—
`
`(B)—
`
`
`
`6
`
`

`

`
`
`“Nokia Licensed Patents” means all Patents ofI Nokia that are licensable by Nokia
`and are either:
`
`p1.
`
`)—
`
`ii)—
`
`
`
`“Patent(s)” means any patent(s) and patent application(s) worldwide (and like
`statutory patent rights).
`
`“Person" means any individual, corporation, partnership, limited liability company,
`firm,
`joint venture,
`association,
`joint-stock campany,
`trust, unincorporated
`organization, governmental authority or other entity.
`
`the Global Patent
`“Related Agreements” means this Settlement Agreement,
`License Agreement and that certain Business Cooperation Agreement made by and
`between the Parties.
`
`“Related Party” means any direct and indirect customers, users, manufacturers
`(including original design manufacturers), suppliers, distributors, retailers, or
`resellers of, as applicable, Apple Covered Products or Nokia Covered Products.
`
`“Schedule” means a schedule to this Settlement Agreement.
`
`“501d” means directly or indirectly sold, distributed, leased or otherwise transferred
`by or for a Party.
`
`“Term” means the term of the Global Patent License Agreement-
`
`“Third Party” means any Person that is not a Party.
`
`(i) wideband code division multiple access
`“UMTS Standard(s)” means the:
`(WCDMA) based UMTS standards as promulgated during the Term by ETSI, 3GPP
`and/or similar bodies and/or their
`respective successor(s)
`including, without
`limitation FOMA, TD—SCDMA, UMTS, HSDPA, HSUPA and HSPA+; and (ii)
`
`

`

`derivatives, updates and other eVOlutions thereof as promulgated during the'I‘e‘rm by
`ETSI, sGPP and/or similar bodies and]or their respective successor(s) provided that
`such deriVatives, updates or evolutions do not fundamentally alter the technical
`character of the standard in question.
`
`2-.
`
`DISCONTINUANCE 0F ACTIONS
`
`Nolcia Corporation and Apple Inc. shall take, and shall cause their Affiliates to take, the
`following *steps to discontinue the Apple Actions and the Nokia Actions to the fullest extent
`permiSsible by applicable rules and prOcedures in the applicable jurisdictions:
`
`2.1 With the exception of the Nokia Actions and Apple Actions described in Clauses 2.2
`and 2.6, within ten (10) Business Days of the Settlement Agreement Effective Date:
`
`2.1.1
`
`“2.1.2
`
`Apple shall take steps sufficient to procure that the Apple Actions be
`withdrawn, discontinued or dismissed in their entirety against all parties
`thereto including by executing and filing at the court or administrative body
`the farms at Schedule 2 and any other filings as may be necessary. Apple’s
`withdrawal, discontinuance or dismissal of such Claims, complaints,
`requests or counterclaims shall be without prejudice.
`
`Nokia shall take steps sufficient to procure that the Nelda Actions be
`withdrawn, discontinued or dismissed in their entirety against Apple,
`including by executing and filing at the court or administrative body the
`forms at Schedule 2 and any other filings as may be necessary. Nokia’s
`withdrawal, discontinuance or dismissal of. such claims, complaints,
`requests or counterclaims shall be without prejudice.
`
`2.2
`
`In relation to the case of Apple Inc. v. Acacia Research Corp, 5:16~cv~o7266 (ND:
`Cal. filed December 20, 2016) [the "ND Cal Case"),xand the Parties and all of-the
`other
`parties
`thereto
`(including Acacia Research Corporation, Cellular
`Communications Equipment LLC, Saint Lawrence Communications LLC, Cellular
`Communications Equipment Gth, Saint Lawrence Communications Gth,
`Conversant IntellectualProperty Management Inc, Core Wireless Licensing S.a.r.l.,
`Core Wireless Licensing Ltd. (together, but exeluding Nokia, the “ND Cal CO-
`Defendants”)) and any other Claim based on Nokia’s licensing or in relation to:
`Nolcia’s divestment of Patents prior to the Settlement Agreement Effective Date
`brought by Apple against Nokia or any Third Party purchaser of Nokia Patents:
`
`2.2.1
`
`Apple and Nokia shall jointly file a motion to dismiss Nokia from the ND Cal
`Case, informing the Court that Apple has settled, waived and released any
`claim therein that Nolda violated the law by any alleged conSpi’racy,
`collusion, or anticompe‘titive arrangement with the ND Cal Co-Defendants to
`breach or circumvent its FRAND obligations, or any antitrust or competition
`law, based on Nolda's licensing or in relation to Nokia’s divestment of the
`Patents at issue in the ND Cal Case.
`
`2.2.2
`
`Apple shall not:
`
`

`

`_F I
`
`2.2.4
`
`n the event an inquiry is made bf Nokia or Appi'e regarding the‘ND Cal
`CaSe, then Apple and NOlda agree, not-withstanding the confidentiality
`provisions in this Settlement Agreement and the Related Agreements, that
`Ndkia or Apple may state publicall‘y that "Nokifi: and Apple have settled the
`claims that Applefiled against Nokia in the Northern District of Califbrn-ia
`case of Apple Inc. v. Acacia Research and have requested that the Court
`dismiss No‘kiafrom the acme."
`
`2.2.5
`
`
`
`

`

`I2.3—
`
`In rcI‘atiOn to proceedings in Germany, if any Party that is a defending party is invited
`by the court to comment on the value in dispute, they will respond that they do not
`intend to comment.
`
`In relation to the Turin Prooeedin‘gs with docket numbers 33485/‘2016 and
`33487/2016, Noltia shall terminate the proceedings by withdrawing all the claims it
`filedi without conditions. or limitations am} without prejuclice.
`
`2.4
`
`2.5
`
`2.6
`
`
`
`2.6.3
`
`1.0»
`
`

`

`
`
`2.7
`
`2.8
`
`249.
`
`42.10
`
`2.11
`
`2.1.3
`
`Each of Nolria Corporation and Apple Inc‘, on behalf of itSelf and its Affiliates, agrees,
`warrants and represents that it will give no further affirmative assistance to any
`regulatory 01 competition authorityin respect of actual or potential investigation
`against the other Party arising from such complaints, requests or informatiOn filed
`unless formally requested or campelléd to do so by such regulatory body or
`competition authority In the event that such regulatory body or competition
`authority compels a Party to provide information, the Party so requested shall
`premptly notify the other Party (to theextent permitted by applicable law, unless
`required by such regulatory body 0r competition authority not to do so), and before
`respondingshall share the request with the other Party (to the extent permitted by
`applicable law, unless required by such regulatorybody or cenipetition authority not
`to do so). It shall also, upon request, share any response with the other Party to the
`extent permitted «by applicable law, unless required by such regulatory body or
`Competition authority net to do so.
`
`Each Party shall without undue delay the any consent necessary'or requested by any"-
`Courtor administrative body to effect the withdrawal discontinuance or dismissal of
`the Apple Actions and Nol'cia Actions Without prejudice.
`
`Each Party shall without undue delay file any additional documents or take any other
`actions‘iu order to effectuate Clauses 2.1m 2.7
`
`Subject to Clauses 2.11 to; 213 below, each Patty shalt hear-halt its ”own costs and fees,
`and neither Party shall request reimbursement of itslegal. ”costs, court fees or expenses
`from the other,
`
`In the event that any Court or administrative body reimburses court feesin respect of
`the Nokia Actions, such reimbursements shallbe payable to Nokia. In the event that
`any Court or administrative body reimburses court fees in respect of the Apple
`Actions, such reimburSements shall be payable to Apple
`
`Any bonds or securities shall be promptly returned «to the Party providing them;
`
`In the event that any expertCS) or other persons appointed by a court or regulatory
`bodyin respect to any Noltia Actions may seek payment or reimbursement of fees,
`expenses 6r costs, these shall be paid by Nelda.
`In the event that any c‘xpert(s) or.
`othei persons appointed by a courtor regulatory bodyin respect to any Apple Actions
`may each payment or reimbursementof fees, expenses or costs, theseshall be paid by
`Apple.
`
`.
`
`‘PAST'RELEASES
`
`3.1
`
`Nokia Corporation, on behalf of itself and its Affiliates, hereby unconditionally and
`irrevocably releases and foreverdischarges any and all Claims.
`
`11;
`
`

`

`3.1.1
`
`against Apple and its Related Parties—
`
`
`———solely to the extent such Claims arise out of
`
`
`prior to the GPLA Effective
`
`
`Date and such activities would have been licen‘Sed or subject
`to the
`covenants and standsfill’s under the Global Patent License Agreement, had
`they occurred during the Term thereof;
`
`3.1.2
`
`against Apple arising out of or in connection with negotiations—
`
`3.1.3
`
`against Apple arising out of or in connection with the MFi licensing
`program, including termination of the agreement dated July 1, 2016 entitled
`“MFi[Work_s With Apple Development License — Contra-ct #MFi-16-01147”
`(the “MFi License”)
`
`For the avoidance of dOuht, such release will apply irrespective of whether or not
`Nokia Was aware of such pOtential Claims at the Setil‘ement Agreement Effective Date
`and is subject
`to Clause 23 (with respect
`to Claims against Third Parties).
`Notwithstanding anything to the contiary in this Clause 3.1, no release or any other
`right or immunity is granted hereunder, whether expressl , imphedly, by estoppel or
`
`otherwise, under any i). Patents that are not
`
`or ii) Patents that are
`
`
`iii): Patents: to the extent that they are other‘wi‘Se not LicenSable during the Term.
`
`3.2
`
`Apple Inc., on behalf of itself and its Affiliates, hereby unconditionally and irrevocably
`releases and forever discharges any and 2111: Claims:
`
`3.2.1
`
`against Nokia and its Related Parties
`
`the extent such Claims arise out of prior to the GPL-A Effective Date and such activities: would
`
`solely to
`
`haVe been licensed or subjeét to the covenants and stand-stills under the
`Global Patent License Agreement, had they occurred during the Term
`thereof; and/or
`'
`'
`
`3.2.2
`
`against Nokia arising out of or in Connection with negotiations_
`
`For the avoidance of doubt, such release will apply irrespective of whether or not
`Apple Was aware of such potential Claims at the Settlement Agreement Effective Date
`and is subject
`to Clause 23 (with respect
`to Claims against Third Parties)
`Notwithstanding anything to the contrary in this Clause 3.2, no release or any other
`right or immunity is granted hereunder, whether expressly, impliedly, by estoppel or
`
`otherwise, under any Patents: i) that are not
`
`- ii)
`
`
`12
`
`

`

`3-3
`
`3.4
`
`—)m mm fheyarmm
`Licensable during the Term.
`
`
`
`

`

`_.
`
`‘-—
`
`_ Notwithstanding anything to: the contrary
`herein, the Parties will not be prevented from or limited in any manner in respect of:
`(i) responding to a subpoena or complying with other requirements of law;
`(ii):
`responding to written requests for information from any regulatory or competition
`authority; and (iii) Complying with their written contractual obligations to Third
`Parties in» existence on the Settlement Agreement Effective Date.
`
`3.6
`
`Each of Nokia Corporation and. Apple incn on behalf of itself and, its Affiliates, having
`specific intent to release all potential Claims described in this Clause 3, whether
`known or unknown, does hereby aclmowledge: and expressly waive the provisions of
`Article 1542 of the California Civil Code (and similar provisions in other jurisdictions,
`whether by statute or common law), which provides:
`
`A GENERAL RELEASE DOES NOT EXTEND TOCLAIMS‘ WHICH- THE CREDITOR
`DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
`OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST
`
`HAVE MATERIALL'' 7‘ lYAFFEC‘I‘ED HIS 0R HER SET“IL‘LEMEN' I'W II'H DEBTOR.
`
`
`In the event a release granted by'either Party to the other Party in thi‘sClause 3 at to
`any Claim is determined by a court, governmental authority or arbitration. tribunal to
`be defective and such granting Party brings such Claim against such other Party in
`any court, governmental authority or arbitration tribunal in contravention of such
`release, such other Party shall be entitled to bring any claim, counterclaim or defense
`against such granting Party in reSponse- to such Claim.
`
`N0 ADMISSIONS, REPRESENTATIONS AND WARRANTIES
`
`No Party makes any admiSsion with regard to infringement, noneinfringement’,
`validity, inizalidity, damages, or any other issue regarding any Patents owned or
`controlled by the Parties, or with regard to any of the Parties’ products, services or
`technologies.
`
`Save as expressly set forth herein, this Settlement Agreement does not grant any
`releases, licenses or other rights to theWor_
`
`_or"to any other Patents owned or contro e" y ’eParties.
`
`3.7
`
`4.
`
`4.1
`
`4.2
`
`4.3
`
`Each Party represents and Warrants to the other Party that:
`
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`
`

`

`4.3.1 Schedule 1 is a full and complete listof all Nokia Actions and Apple Actions;
`
`4.3.2 the person(s) signing this Settlement Agreement on its behalf is/are fully
`authorised and legally competent to execute and deliver this Settlement
`Agreement on its behalf; and
`
`4.3.3 the performance of this Settlement Agreement has been fully authorised by all
`necessary corporate and other actions by each of its Affiliates that may be
`' parties to the Nokia Actions or Apple Actions.
`
`5.
`
`BINDING EFFECT '
`
`This Settlement Agreement is binding on all: Parties upon signature. This Settlement
`Agreement may be executed in multiple counterparts, each of whiCh shall be deemed an
`original, but all of which together shall constitute one and the same instrument. In making
`proof of this Settlement Agreement, it shall not be necessary to produce or account for more
`than one such counterpart.
`'
`
`6.
`
`FURTHER ASSURANCES
`
`Each Party shall at its own cest and expense use all reasonable endeavours to ensure the
`carrying out of whatever further actions (including the execution of further documents) may
`be required to give effect to this Settlement Agreement.
`
`7.
`
`APPLICABLE LAW AND JURISDICTION
`
`7.: —
`
`
`
`7.1.2
`
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`

`7.1.4_ .
`
`——
`
`_
`
`7.3 . The. validity, perfonnance, construction and interpretation of this Settlement
`Agreement shall be governed by the laws of the State of New Yark, without regara- te’
`its conflict of law provisions.
`
`7.4
`
`Any Party seeking interim or injunctive relief in relation to an alleged breaeh'of this
`Settlement Agreement may do so in any‘jurisdiction where relief may be available._
`
`7-5 then the Parties agree that: '(i) Nokia shall be
`
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`

`entitled to seek interim relief in any jurisdiction pursuant to Clause 7.4', including to
`intervene for this limited purpose in any such court (or other tribunal) in which Apple
`has brought such Claim;
`(ii). any breach of ClauSes 2.2 and/or 3.3 will cause
`irreparable damage to Nelda and that Nokia will not have an adequate remedy at law
`in connection therewith; and (iii): Clauses 2.2 and/or 3.3 will be enforceable by a
`decree of "specific performance issued by any ecur‘t or arbitration tribunal of
`competent jurisdiction, and appropriate injunctive relief should be granted pending
`the resolution of such Dispute under the dispute reSOIution provisions set forth in
`Clause 7.
`
`All of the above remedies in this Clause 7.5 shall be cumulative and not exclusive, and
`shall be in addition to any other remedies which Nokia may have under this
`Settlement Agreement or otherwise.
`
`8.
`
`CONFIDENTIALITY AND PUBLICITY
`
`The Parties will hold this Settlement Agreement, its Schedules and its terms and cond’itiOns,
`but not
`the existence hereof, along with all correspondence and information. shared
`hereunder or relating to this Settlement Agreement, that is not or has not become public, as
`strictly confidential and agree to refrain'from disclosing them now or hereafter to any Third
`Party, unless such disclosure is:
`
`
`
`I—
`
`I-
`
`17
`
`

`

`I —
`
`
`
`9.
`
`9.1
`
`9.2
`
`9.3
`
`9.4
`
`9.5
`
`9.6
`
`MISCELLANEOUS
`
`No variation of this Settlement Agreement shall be efiective unless madein writing
`and: signed by Nokia Corporation and Apple Inc. ThisClause 9.1 can only be varied1n
`Writing and by signature of these Parties.
`
`If at any time, any provision hereofis or becomes illegal, invalid or unenforceablein
`any respect under the law of any jurisdictmn neither the legality, validity or
`enterceability of the remaining previsions hereof 1101:
`the legality, Validity or
`enforceability or such provision under the law of any other jurisdiction shallin any
`waybe affected or impaired there11y The invalld provision shall be replaced by a valid.
`One, “hich achieves to the fullest extent possible the original purpose and commercial
`goal ofthe invalid provision.
`
`This Settlement Agreement is conditional upon the execution by the Parties of the
`Global Patent License Agreement, the Framework Agreement and the other Related
`Agreements
`
`This Settlement Agreement may not be terminated other than pursuant to mutual
`written agreement between Nelda Corporation and Apple Inc.
`In the event of any
`alleged material breach by a Party, the other Party shall provide written notice thereof
`to the Party alleged to have committed such material breach and the Party alleged to
`have committed suchbreach shall take prompt, reasonable efforts to cure.
`Neither this Settlement Agreement nor any provision hereof may be waived without
`the prior written consent of the Party against whern such WaiVer is asserted. No delay
`01' omission byeither Party to exercise any right or poWer shall'impair any such right
`or poWer or be censtrued to be a waiverthereof. Consent by either Party to, or waiver
`of, a breach by the ether Party shall not constitute consent to,Waiver of, or excnSc for
`any other different or subsequent breach.
`Notices shall he madein writing andm the English language and shall he sent by
`overnight delivery to the following addresses (or such other address as may be
`notified'in writing from time to time by eitherParty) and deemed received on the
`third (3rd) Business Day following the sending thereof.
`
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`
`

`

`Additionally, any netice given by one Party to the other shall be deemed properly
`given, if the reception thereof13 specifically acknowledged by the receiving Party in
`writing or when demonstrably delivered to the recipient by hand or prepaid,
`internationally—recognized, ovemight courier to the following addresses (or such
`other address as may be notifi