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Par Sadarbības līgumu starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV, saistītajiem līgumiem — Savstarpējo pārtraukšanas līgumu starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV un Līgumu attiecībā uz Gallaher starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV — un Atbrīvojumu
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Saeima ir pieņēmusi un Valsts
prezidents izsludina šādu likumu:
Par Sadarbības līgumu starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV, saistītajiem līgumiem — Savstarpējo pārtraukšanas līgumu starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV un Līgumu attiecībā uz Gallaher starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV — un Atbrīvojumu
1.pants. 2007.gada 16.oktobrī parakstītais Sadarbības līgums starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV (turpmāk — Sadarbības līgums), saistītie līgumi — Savstarpējais pārtraukšanas līgums starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV un Līgums attiecībā uz Gallaher starp Eiropas Kopienu un iesaistītajām dalībvalstīm ar JT International SA un JT International Holding BV (turpmāk — Saistītie līgumi) — un Atbrīvojums ar šo likumu tiek pieņemts un apstiprināts.
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2.pants. Sadarbības līgumā, Saistītajos līgumos un Atbrīvojumā paredzēto saistību izpildi koordinē Finanšu ministrija.
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3.pants. Sadarbības līgums stājas spēkā tā 21.pantā noteiktajā laikā un kārtībā, Saistītie līgumi un Atbrīvojums stājas spēkā tajos noteiktajā laikā un kārtībā, un Ārlietu ministrija par to paziņo laikrakstā “Latvijas Vēstnesis”.
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4.pants. Likums stājas spēkā nākamajā dienā pēc tā izsludināšanas. Līdz ar likumu izsludināms Sadarbības līgums, tā pirmais, otrais, trešais, ceturtais un piektais pielikums, kā arī Saistītie līgumi angļu valodā un to tulkojums latviešu valodā.
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Likums Saeimā pieņemts 2009.gada 5.februārī.
Valsts prezidents V.Zatlers
Rīgā 2009.gada 25.februārī
14 December 2007JT INTERNATIONAL S.A. JT INTERNATIONAL HOLDING BV ANDTHE EUROPEAN COMMUNITY AND THE PARTICIPATING MEMBER STATESCOOPERATION AGREEMENTTHIS AGREEMENT is made on 14 December 2007.BETWEENJT International S.A. (JTI) and JT International Holding BV (JTH), on their own behalf and for and on behalf of all subsidiaries of JTH existing at the date of this Agreement (together Japan Tobacco Companies)andThe European Community (the EC) represented by the European Commission (the Commission)andthe Member States of the European Union participating in this Agreement (the Participating Member States).1. RECITALSWHEREAS(A) illicit traffic in Cigarettes is a growing problem for the EC, for Member States and for legitimate trade in tobacco products. It takes the form of trade in both counterfeit Cigarettes and genuine products, which are smuggled into the EC without payment of any applicable EC or Member State tax or duty, or unlawfully introduced from low-tax jurisdictions into higher-tax jurisdictions;(B) illicit traffic in Cigarettes is against the public interest in tax collection, transparent markets, and the protection of lawful competition. As such, illicit traffic in Cigarettes is against the interests of the EC, the Member States, as well as Japan Tobacco Companies and their stakeholders, including employees, customers, business partners and shareholders;(C) the problem of illicit traffic in Cigarettes calls for binding cooperative efforts between the tobacco industry, the Member States and the EC aimed at eliminating the flow of contraband and counterfeit and consequent loss of revenues;(D) Japan Tobacco Companies recognise that creating a system to provide the EC and Member States with the effective and timely ability to track and trace sales of Japan Tobacco Cigarettes is an important component of their commitment to fight the trade in Illegal Product. Japan Tobacco Companies are committed to a continuous process of dialogue and cooperation with the EC and Member States to evaluate and address the trade in Illegal Product, and to making commercially reasonable efforts to implement product tracking and tracing measures that target and are reasonably likely to provide the EC and Member States with substantial additional assistance in their efforts to combat the trade in Illegal Product;(E) this Agreement is designed to achieve the Parties’ joint objective of establishing an ongoing relationship of meaningful cooperation to combat the manufacture, sale, distribution and/or storage of smuggled and/or counterfeit Cigarettes into or through the EC as well as any other related illegal activities and specifically to eliminate the introduction of Japan Tobacco Cigarettes into the illegal market;(F) the Parties have a joint objective that sales of Cigarettes to persons, corporations and/or distributors that have been found to be unlawfully, knowingly or recklessly engaged in or facilitating the manufacture, sale, distribution and/or storage of smuggled products or any other related illegal activities should be terminated; the Parties recognise that OLAF and the Member States are in a proper position to investigate and take action against such persons, and to prevent and detect such frauds, and that the EC and the Member States should be provided with active and effective support from Japan Tobacco Companies for their efforts to deter any act or practice that favours or facilitates the use of Japan Tobacco Cigarettes in smuggling or as a vehicle to launder illegal proceeds. The infonnation provided by Japan Tobacco Companies to OLAF and the Participating Member States pursuant to this Agreement will contribute to the vigorous pursuit of persons suspected of smuggling Cigarettes, counterfeiting cigarettes and any other related illegal activity throughout the world;(G) Japan Tobacco Companies recognise that establishing this Cooperation Agreement with the EC and the Participating Member States is in their best interests as it effectively combats the introduction of Japan Tobacco Cigarettes into the illegal market in the EC, enhances the ability of the Parties to resolve any related disputes without recourse to litigation and will benefit and protect Japan Tobacco Companies’ brand value and business within the EC.THEREFOREthe Parties have agreed to enter into this Agreement in consideration of the mutual covenants and other valuable consideration set out below.2. DEFINITIONS AND INTERPRETATION2.1 In this Agreement, the following terms shall have the following meanings: Additional Payment means the payment or payments referred to in Clause 7.10.Affiliate means, in relation to any Party, any direct or indirect subsidiary, as may be from time to time.Agreement means this agreement as it may be varied or modified from time to time.Audit Order means the order which the EC may seek from the arbitrator requiring an audit of Japan Tobacco Companies’ operations to verify compliance with the Agreement.Authorised Individuals means the personnel designated pursuant to sub-Clause 7.4.Blocked Customer or Blocked Contractor means a Certified Customer, Certified Contractor, Second Purchaser or Subsequent Purchaser who is precluded from conducting business relations with Japan Tobacco Companies for a period of 5 years in accordance with sub-Clauses 5.11 to 5.14 of this Agreement.Business Day means a day other than a Saturday, Sunday, or a statutory public holiday in Belgium or Switzerland.Carton means packaging for approximately 200 Cigarettes, normally contained in 10 Packs.Certificate of Compliance means the report which Japan Tobacco Companies shall provide to OLAF and the Participating Member States pursuant to Clause 11.1, describing Japan Tobacco Companies’ fulfilment of the requirements of this Agreement.Certified Customer or Certified Contractor means a First Purchaser or Contractor, respectively, that purchases and/or handles more than 2,500 Master Cases of Japan Tobacco Cigarettes in any 12 month period, and who has been vetted and approved by a Japan Tobacco Company in accordance with the KYC principles referred to in Clause 5 and described in Annex 3, which are reflected in Japan Tobacco’s Programmes.Chief Compliance Officer means the individual with responsibility for all compliance issues, including those pursuant to this Agreement.Cigarette means any product that contains tobacco and is intended to be burned or heated under ordinary conditions of use, and includes, without limitation, any “roll-your-own” tobacco which, because of its appearance, type, packaging, or labelling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For the purposes of this Agreement, 0.0325 ounces of “roll-your-own” tobacco shall be considered the equivalent of one individual Cigarette.Compliance Order means the order which the EC may seek from the arbitrator requiring Japan Tobacco Companies to bring themselves into compliance with the Agreement.Contraband Cigarettes means Cigarettes that have been imported into, distributed in, or sold in a Member State, or were en route to a Member State for sale in that Member State, in violation of the applicable tax, duty or other fiscal laws of that Member State or the EC, but, for the purposes of this Agreement, shall exclude Counterfeit Cigarettes.Contraband Japan Tobacco Cigarettes means Japan Tobacco Cigarettes that are also Contraband Cigarettes.Contractor means any individual or business, (other than a First Purchaser or an Affiliate of a Japan Tobacco Company) engaged by Japan Tobacco Companies to provide distribution or storage services for Japan Tobacco Cigarettes, or a non -Affiliate of Japan Tobacco Companies engaged in the manufacture under license of products bearing Japan Tobacco Trademarks.Cooperating Company means a company that has entered into a binding agreement with the EC and some or all of the Member States which covers cooperation in the fight against counterfeit and contraband cigarettes and which includes obligations in relation to know your customer, track and trace and monetary payments.Corporate Responsibility Committee means the entity within JTI of the same name referred to in Clause 4.1(b).Counterfeit Cigarettes means Cigarettes bearing a trademark of a Cigarette manufacturer that are manufactured by a third party without the consent of that Cigarette manufacturer, but shall in no event include: (i) Cigarettes manufactured by the trademark holder or any affiliate thereof, regardless of the actual or intended market of distribution; (ii) Cigarettes bearing a trademark of a Cigarette manufacturer using tobacco either produced by or sold by that Cigarette manufacturer; or (iii) Cigarettes bearing a trademark of a Cigarette manufacturer that are packaged in genuine packaging of that Cigarette manufacturer, including genuine Cartons and Packs of that Cigarette manufacturer.Counterfeit Japan Tobacco Cigarettes means Cigarettes bearing a Japan Tobacco Trademark that are manufactured by a third party without the consent of Japan Tobacco Companies, but shall in no event include: (i) Cigarettes manufactured by Japan Tobacco Companies or any Affiliate thereof, regardless of the actual or intended market of distribution; or (ii) Cigarettes bearing a Japan Tobacco Trademark using tobacco either produced by or sold by Japan Tobacco Companies, or (iii) Cigarettes bearing a Japan Tobacco Trademark that are packaged in genuine Japan Tobacco Companies packaging, including genuine Japan Tobacco Companies Cartons and Packs, unless Japan Tobacco Companies can demonstrate that such genuine Japan Tobacco Companies packaging materials were stolen from Japan Tobacco Companies.Dispute means a controversy, claim, disagreement or dispute arising out of, or relating to, this Agreement.Documentary or Other Substantive Evidence means: (i) a criminal conviction in any official EC court or tribunal for any offence relating to the manufacture, sale, distribution and/or storage of Illegal Product, or any other related illegal activity; or (ii) a finding by any official EC court or tribunal in any civil case of involvement in the manufacture, sale, distribution and/or storage of Illegal Product, or any other related illegal activity; or (iii) a criminal conviction or a civil finding, as outlined in (i) and (ii) above, in the official court or tribunal of any other jurisdiction which has comparable procedural safeguards and requires a comparable standard of proof to those applicable in the EC.Execution Date means the date that this Agreement becomes binding on all of the Parties, being the later of: (i) the date on which the signatures to this Agreement of the EC and the Participating Member States have been delivered to Japan Tobacco Companies; or (ii) the date on which the signatures to this Agreement of JTH and JTI have been delivered to the EC.First Purchaser means any individual or business, other than an Affiliate of a Japan Tobacco Company, to whom or to which Japan Tobacco Companies directly sell Cigarettes.Governance Meetings means the meetings referred to in Clauses 8 and 9.Illegal Product means Contraband or Counterfeit Cigarettes.Intended Market of Retail Sale means the market that Japan Tobacco Companies intend as, and have agreed with the Certified Customer will be, the market of either domestic retail or duty-free retail sale for Japan Tobacco Cigarettes when Japan Tobacco Companies sell such Cigarettes to Certified Customers.International Japan Tobacco Trademarks means any and all of the trademarks set out in Annex 1.Japan Tobacco Cigarettes mean Cigarettes carrying Japan Tobacco Trademarks manufactured by any Japan Tobacco Company, any Affiliate of a Japan Tobacco Company or a Japan Tobacco Company licensee or contract manufacturer and, for the avoidance of any doubt, excludes any Cigarettes carrying any other trademarks which were acquired by any Japan Tobacco Company subsequent to 1 April 2007.Japan Tobacco Company/Companies includes and/or means JTI, JTH and all subsidiaries of JTH in existence at the Execution Date and involved in the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes, and each of them individually.Japan Tobacco’s Programmes means Japan Tobacco Companies’ internal compliance policies that address the manufacture, sale, distribution and/or storage of Cigarettes, including, without limitation, the Code of Conduct available at www.jti.com.Japan Tobacco Trademarks means any and all of the trademarks set out in Annex 2.KYC programme means the Know Your Customer programme referred to in Clause 5 and described in more detail in Annex 3.List of Arbitrators means the list of arbitrators at Annex 4.Master Case means packaging for approximately 10,000 Cigarettes.Member States means States that are members of the European Union.Non-Participating Member States means those Member States that are not Parties to this Agreement.OLAF means the Anti-Fraud Office of the European Commission, or any successor thereof.Pack means packaging for approximately 20 Cigarettes.Participating Member States means those Member States whose signatures to this Agreement have been delivered to Japan Tobacco Companies by the Execution Date together with those Member States that subsequently accede to this Agreement in accordance with Clause 25.Party or Parties means a party or parties to this Agreement that is/are listed or referred to on the title page of this Agreement and have acceded to this Agreement by executing a signature page but excluding Japan Tobacco Inc..Relevant Law means the relevant laws, statutes, ordinances, rules, regulations or other provisions having the force or effect of law in the EC and/or any Member State which are in effect in each Member State as of its signature date, or are enacted or amended by the EC or a Member State after its signature date.Request for Termination means a written request pursuant to Clause 5.13 from OLAF that a Certified Customer, Certified Contractor or a Second or Subsequent Purchaser be terminated.RJR Entities means Reynolds American Inc., R.J. Reynolds Tobacco Company (a North Carolina corporation), R.J. Reynolds Tobacco Company (a Delaware corporation), R.J. Reynolds Tobacco Company (a New Jersey corporation), RJR Nabisco Inc., R.J. Reynolds Tobacco International, Inc., RJR Acquisition Corp., Nabisco Group Holdings Corp., RJR Nabisco Holdings Corp., R.J. Reynolds Tobacco Holdings, Inc., R.J. Reynolds Global Products, Inc., and all their affiliates and subsidiaries existing on May 12, 1999 or acquired thereafter (which, for the avoidance of doubt, does not include any Japan Tobacco Group Companies).Second Purchaser means any individual or business to whom or to which First Purchasers directly sell one thousand or more Master Cases of Cigarettes in any 12 month period.Statement of Non-Compliance means the statement which OLAF shall provide to Japan Tobacco Companies pursuant to Clause 11.2 if it reasonably believes that they are failing to perforrn their obligations under the Agreement.Subsequent Purchaser means any individual or business to whom or to which Second Purchasers directly or indirectly sell one thousand or more Master Cases of Cigarettes in any 12 month period.Termination Notice means a notice pursuant to Clause 12, served pursuant to the processes in Clause 15 specifying the nature of any material breach in sufficient detail so as to enable the Party in receipt to evaluate what action it should take.Trier Laboratories means the laboratory located at JT International GmbH, Diedenhofener Strasse 20, 54294 Trier, Germany.2.2 Save where the context requires otherwise:(a) references to any clause, sub-clause or annex without further designation shall be construed as a reference to the clause, sub-clause or annex to or of this Agreement so numbered;(b) clause and annex headings are for convenience only and shall not be taken into account in the interpretation of this Agreement; and(c) reference to any gender shall include all genders and reference to the singular shall include the plural and vice versa.3. COMMITMENTS OF JAPAN TOBACCO COMPANIESGeneral Commitment3.1 Japan Tobacco Companies confirm their ongoing commitment and obligation to comply with all applicable laws, including those of the EC and the Member States and, in particular, those governing their conduct relating to:(a) the payment of import duties, value added tax, excise duty, and other imposts payable in relation to Japan Tobacco Cigarettes;(b) the handling of payments which are received from Certified Customers, Certified Contractors, licensees, and other obligors in respect of Japan Tobacco Cigarettes;(c) currency reporting and record-keeping requirements in relation to Japan Tobacco Cigarettes; and(d) trade restrictions or prohibitions in relation to Japan Tobacco Cigarettes.3.2 In the event that Japan Tobacco Companies acquire new manufacturing facilities after the Execution Date that would have been subject to this Agreement if they had been a part of Japan Tobacco Companies on the Execution Date and which would, but for this clause, be subject to the terms of this Cooperation Agreement, the Parties agree that the obligations of JTH and JTI shall be to make commercially reasonable efforts to implement within 12 months of such acquisition, the requirements of this Agreement in those new manufacturing facilities and after the expiry of that 12-month period, those new facilities shall be considered part of Japan Tobacco Companies for the purposes of this Agreement. Should JTH and/or JTI reasonably require additional time for the implementation of the requirements of this Agreement in any such new manufacturing facilities, JTH and/or JTI may make a reasoned request to OLAF for an extension. The EC and Participating Member States agree that consent to a reasoned request for a reasonable extension under this sub-Clause shall not be unreasonably withheld.3.3 In the event that a company or group of companies engaged in the manufacture, sale, distribution and/or storage of Cigarettes carrying non-Japan Tobacco Trademarks is acquired by or merged into Japan Tobacco Companies subsequent to the Execution Date or any Japan Tobacco Company otherwise obtains, directly or indirectly, ownership of such a company or group of companies with the ability to exercise direct management control over it, Japan Tobacco Companies and the EC shall, as soon as reasonably practicable, meet to discuss the extent to and the time frame within which, the provisions of this Agreement and any other agreement between the Parties coming into force at or immediately prior to the Execution Date, might reasonably be applied, by agreement to the acquired company or group of companies.3.4 Without prejudice to sub-Clause 3.3, in the event that a company or group of companies engaged in the manufacture, sale, distribution and/or storage of Cigarettes carrying non-Japan Tobacco Trademarks is acquired by or merged into Japan Tobacco Companies subsequent to the Execution Date or any Japan Tobacco Company otherwise obtains, directly or indirectly, ownership of or the ability to exercise direct management control over such a company or group of companies, Japan Tobacco Companies undertake to apply each of the obligations set out in sub-Clauses 3.5 to 3.12, Clause 4 and sub-Clause 5.1, to all entities which thereby become Japan Tobacco Companies with effect from 2 years from the date that such company is acquired with respect to all Cigarettes sold by any Japan Tobacco Company carrying any trademark owned or controlled by the acquired company or group of companies and being under the management control of any Japan Tobacco Company as a result of that acquisition. With respect to any such entity, any time limits in sub-Clauses 3.5 to 3.12, Clause 4 and sub-Clause 5.1 for the implernentation of the obligations set out in those sub-Clauses, shall be extended to 2 years from the date that the entity was acquired.Japan Tobacco ‘s Programmes3.5 Japan Tobacco Companies shall retain and enforce programmes substantially in the form of Japan Tobacco’s Programmes and providing, in aggregate, a degree of compliance and ethical standards not materially less than those arising from Japan Tobacco’s Programmes as defined at the Execution Date of this Agreement.3.6 Japan Tobacco Companies shall make commercially reasonable efforts to ensure compliance by their officers, employees and agents with the principles and requirements of this Agreement and Japan Tobacco’s Programmes.3.7 Japan Tobacco Companies shall enhance Japan Tobacco’s Programmes continually to reflect material changes in international practice and developments in technologies and procedures and shall inform OLAF of any material changes in those Programmes when submitting its Certificate of Compliance.3.8 Conduct that is unlawful or that violates this Agreement or Japan Tobacco’s Programmes shall not be condoned under any circumstances. This includes conduct that occurs in a country that does not enforce a restriction or prohibition contained in this Agreement or Japan Tobacco’s Programmes in its own law or in which such a violation is not subject to public criticism or censure.3.9 After detecting any violation of this Agreement or Japan Tobacco’s Programmes, Japan Tobacco Companies shall make all commercially reasonable efforts to prevent and/or penalise further similar conduct.3.10 Japan Tobacco Companies acknowledge that the fact that a competitor or other company may appear to be engaged in an illegal activity without incurring any penalties does not mean that Japan Tobacco Companies can be involved in such illegal activity or condone the involvement of their Certified Customers or Certified Contractors or anyone associated with Japan Tobacco Companies in such illegal activity.3.11 Within 6 months of the Execution Date of this Agreement, Japan Tobacco’s Programmes shall be revised to incorporate the relevant components included in this Agreement. In the event of any inconsistency between Japan Tobacco’s Programmes and this Agreement, the latter shall prevail.Internal Communication3.12 Japan Tobacco Companies shall make the following available to all Japan Tobacco Companies’ employees on Japan Tobacco Companies’ internal website:(a) this Agreement;(b) Japan Tobacco’s Programmes, as revised as a result of this Agreement;(c) frequently asked questions and answers relating to this Agreement;(d) frequently asked questions and answers relating to the revisions made to Japan Tobacco’s Programmes; and(e) a link to the reporting system established pursuant to sub-Clauses 4.6 to 4.7.4. INTERNAL COMPLIANCE ORGANISATIONJapan Tobacco Companies’ Compliance Officer4.1 For the purposes of this Agreement, JTI shall maintain in place at all times a Chief Compliance Officer for Japan Tobacco Companies who shall report directly to the Board of JTH. The Chief Compliance Officer shall have the authority and be responsible for:(a) reviewing Japan Tobacco Companies’ practices relating to the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes;(b) defining, with the Corporate Responsibility Committee of JTI, the various compliance objectives of Japan Tobacco Companies;(c) undertaking and executing any and all of the commitments made under this Agreement by Japan Tobacco Companies;(d) overseeing and investigating compliance by Japan Tobacco Companies with Japan Tobacco’s Programmes and the Agreement;(e) developing and reviewing education and training programmes for employees relating to the manufacture, sale, distribution and/or storage of Japan TobaccoCigarettes in accordance with Japan Tobacco’s Programmes and the Agreement; and(f) serving, directly and/or through appropriate staff, as a contact point for communication between Japan Tobacco Companies and the EC and the Participating Member States.4.2 Japan Tobacco Companies shall, within 12 months of the Execution Date of this Agreement, appoint field compliance officers or their equivalent and regional compliance officers or their equivalent, with responsibility for monitoring and measuring compliance with Japan Tobacco’s Programmes and fulfilling the responsibilities set out therein. These field and regional compliance officers will report, through the compliance management structure, to the Chief Compliance Officer. Japan Tobacco Companies shall provide OLAF with a comprehensive and up-to-date list of its appointed field and regional compliance officers on the first anniversary of the Execution Date and on each anniversary of the Execution Date thereafter.Delegation of Authority4.3 Substantial discretionary authority relating to the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes, or the establishment of policies and business practices relating to them, shall be delegated by Japan Tobacco Companies only to Japan Tobacco Companies’ employees that Japan Tobacco Companies reasonably believe, after the exercise of due diligence, have demonstrated the ability and commitment to act in full compliance with all applicable laws, Japan Tobacco’s Programmes as revised, the KYC programme and the requirements of this Agreement.Performance Reviews4.4 Japan Tobacco Companies shall have in place and shall continue to update procedures to review on an annual basis, the performance of employees whose activities relate to the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes and to take effective and appropriate steps, against the employee and/or vis-a-vis the authorities, in the event that an employee fails to comply with Japan Tobacco’s Programmes.Training Programmes4.5 Japan Tobacco Companies shall have in place, and shall continue to update, mandatory training programmes for their employees whose activities involve the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes, or the establishment of the policies and business practices relating to these activities. The curriculum for such training programmes shall cover this Agreement and its application to the policies and business practices relating to the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes, and shall be notified to OLAF and the Participating Member States. The employees responsible for designing and implementing the training programmes covered under this sub-Clause shall, at least once a year, either conduct or participate in training programmes designed to educate and inform Japan Tobacco Companies’ employees about their compliance obligations under Japan Tobacco’s Programmes and this Agreement, with supplemental training to be required if necessary, at the discretion of the Chief Compliance Officer. At least once a year, a representative of OLAF shall participate in the training for Japan Tobacco Companies’ employees.Reporting of Suspicious Activity4.6 Japan Tobacco Companies shall require any employee of Japan Tobacco Companies who suspects that there has been a violation of Japan Tobacco’s Programmes or this Agreerrient by another employee or by a Certified Customer or Certified Contractor, promptly to report the activity to a field compliance officer or the Chief Compliance Officer and/or in-house legal counsel. To the extent permitted by law, the identity of the reporting employee will be kept confidential, if so requested by the employee.4.7 The Chief Compliance Officer shall create a reporting system that will allow employees of Japan Tobacco Companies to report either in confidence or, to the extent permitted by law, anonymously to an appointed contact person, including by email, regular mail, or telephone, any suspicious transactions, including, but not limited to, cash transactions in an amount greater than $10,000, or any suspected involvement of Japan Tobacco Companies’ employees, Certified Contractors or Certified Customers in:(a) the manufacture, sale, distribution and/or storage of Illegal Product;(b) any related illegal activity; or(c) transactions that do not correspond to ordinary commercial practices, violate this Agreement or Japan Tobacco’s Programmes, or make Japan Tobacco Cigarettes vulnerable to diversion into illegal trade channels.To the extent permitted by law, if the reporting employee so requests, the identity of the reporting employee shall be kept confidential at all times by any appointed contact persorn and shall not be disclosed when informing the field compliance officer, Chief Compliance Officer and/or in-house legal counsel of the suspicious transaction(s).4.8 Japan Tobacco Companies shall immediately investigate any report of any potential suspicious transaction as referred to in sub-Clause 4.7 that is not spurious and shall provide OLAF with a report, to the extent permitted by law, if on investigation, there are reasonable grounds for believing that there has been an infringement.4.9 Japan Tobacco Companies shall, to the extent permitted by law, encourage its employees and/or agents to make themselves available, and specifically ensure that the Chief Compliance Officer or an appropriate employee will make themselves available, to OLAF and any relevant Participating Member State for interviews and for the purposes of giving sworn statements, as reasonably requested and required by OLAF and the Participating Member States, relating to matters which are covered by this Agreement and that have arisen after the Execution Date of this Agreement.Any such interviews and/or statements by Japan Tobacco Companies employees and/or agents shall be with or without the assistance and/or presence of representatives of Japan Tobacco Companies, as the employee/agent shall request.5. CERTIFIED CUSTOMER AND CERTIFIED CONTRACTOR RELATIONSSupply Obligation5.1 Japan Tobacco Companies shall supply Japan Tobacco Cigarettes only in quantities that are commensurate with legitimate consumption in the Intended Market of Retail Sale and shall refuse to supply Cigarettes that exceed such consumption.KYC programmes5.2 Within six months of the Execution Date of this Agreement, Japan Tobacco Companies shall undertake, on a worldwide basis, to apply this Agreement, as relevant, and their KYC programmes to any contracts with any new First Purchaser or Contractor that may be expected to purchase and/or handle more than 2,500 Master Cases of Japan Tobacco Cigarettes in any 12 month period at any time during the first two years of doing business with Japan Tobacco Companies, or who subsequently does purchase and/or handle more than 2,500 Master Cases of Japan Tobacco Cigarettes in any 12 month period at any time during the course of this Agreement, so that those First Purchasers or Contractors become Certified Customers or Certified Contractors.5.3 Within one year of the Execution Date of this Agreement and to the extent permitted by law, Japan Tobacco Companies shall, on a worldwide basis, undertake to apply this Agreement, as relevant, and their KYC programmes to contracts with all of their existing First Purchasers and Contractors, that as of the Execution Date of this Agreement, purchase and/or handle, or are reasonably expected to continue to purchase and/or handle, more than 2,500 Master Cases of Japan Tobacco Cigarettes in any 12 month period so that those First Purchasers or Contractors become Certified Customers or Certified Contractors.5.4 Japan Tobacco Companies shall, to the extent permitted by law, require their Certified Customers and Certified Contractors to adhere to the principles of this Agreement, as relevant, and Japan Tobacco’s Programmes as a condition of obtaining certification as such.5.5 Japan Tobacco Companies shall, to the extent permitted by law, conduct regular reviews, on an ad hoc basis but at least once a year, as a condition of renewing the certification of Certified Customers and Certified Contractors. These reviews shall be conducted by reference to this Agreement, as relevant, and Japan Tobacco’s Programmes.5.6 Japan Tobacco Companies’ representatives shall, to the extent permitted by law, carry out regular documented visits to Certified Customer and Certified Contractor sites to inspect their operations to ensure the application of this Agreement, as relevant, and Japan Tobacco’s Programmes.5.7 If Japan Tobacco Companies discover that a Certified Customer or a Certified Contractor materially no longer complies with the principles of this Agreement or Japan Tobacco’s Programmes, and cannot adjust its position so as to comply within a reasonable time frame which shall not exceed 6 months, they shall take all reasonable steps open to them, to the extent permitted by law, to tenainate the relationship within a reasonable time. Should Japan Tobacco Companies reasonably require additional time for a Certified Customer or Certified Contractor to renew compliance with the requirements of this Agreement, Japan Tobacco Companies may make a reasoned request to OLAF for an extension. The EC and Participating Member States agree that consent to a reasoned request for a reasonable extension under this sub-Clause shall not be unreasonably withheld.5.8 Japan Tobacco Companies shall, to the extent permitted by law, keep full upto-date records on all Certified Customers and Certified Contractors for at least five years including:(a) material commercial documents relevant to this Agreement, such as invoices, correspondence of a material nature to and from said Certified Customer or Certified Contractor, internal correspondence of a material nature relating thereto, contracts, credit analysis, cargo manifests, declarations to any relevant authorities, transport documents and other shipping documents;(b) documents obtained by Japan Tobacco Companies as part of the KYC procedures;(c) any inquiries from and responses to government agencies regarding the Certified Customer, the Certified Contractor or their businesses; and(d) all records relating to payments made by First Purchasers for Japan Tobacco Cigarettes.Certified Customer and Certified Contractor Contract Terms5.9 In all new, revised or renewed contracts with Certified Customers and Certified Contractors, Japan Tobacco Companies shall require that the following principles are adhered to:(a) full compliance at all times with all applicable laws governing the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes;(b) full compliance with the principles of Japan Tobacco Companies’ Code of Conduct, available at www.jti.com;(c) Japan Tobacco Cigarettes must be delivered for sale into the Intended Market of Retail Sale;(d) Japan Tobacco Cigarettes’ packaging must not be altered in any way;(e) full cooperation with any EC and/or Participating Member State investigations relating to Illegal Product, to the extent permitted by law;(f) express and unconditional consent to be granted to Japan Tobacco Companies to terminate the business relationship if any Japan Tobacco Company comes into possession of reasonable evidence that the Certified Customer or Certified Contractor has, after the Execution Date of this Agreement, unlawfully, knowingly or recklessly engaged in or facilitated the manufacture, sale, distribution and/or storage of Illegal Product, or any other related illegal activities;(g) express and unconditional consent to be granted, to the extent permitted by law, to Japan Tobacco Companies to disclose the terms and conditions of any sale of Japan Tobacco Cigarettes to the First Purchaser and any related infonnation in response to a valid and specific governmental inquiry relating to Illegal Product; and(h) not to sell or resell Japan Tobacco Cigarettes to any person or entity:(i) whom the Certified Customer knows or reasonably should know is engaged in any illegal trade; or(ii) where the Certified Customer has obtained Documentary or Other Substantive Evidence that the person/entity is engaged in any illegal trade; or(iii) who is a Blocked Customer or a Blocked Contractor.5.10 Japan Tobacco Companies shall make conunercially reasonable efforts to ensure that substantively equivalent provisions are inserted progressively on the first practicable occasion into the contracts entered into by First Purchasers with Second Purchasers and by Second Purchasers with Subsequent Purchasers.Termination of Contracts with Certified Customers/Contractors5.11 Japan Tobacco Companies shall, to the extent permitted by law, terminate their business relationship with any Certified Customer or Certified Contractor upon Japan Tobacco Companies coming into possession of Documentary or Other Substantive Evidence that the Certified Customer or Certified Contractor has, after the Execution Date of this Agreement, unlawfully, knowingly or recklessly engaged in or facilitated the manufacture, sale, distribution and/or storage of Illegal Product or any other related illegal activities. Any Certified Customer or Certified Contractor so terminated shall become a Blocked Customer or a Blocked Contractor, respectively, and OLAF shall be so notified.5.12 In the event that OLAF provides Japan Tobacco Companies with, or Japan Tobacco Companies otherwise come into possession of, Documentary or Other Substantive Evidence that a Second Purchaser or Subsequent Purchaser has, after the Execution Date of this Agreement, unlawfully, knowingly or recklessly engaged in or facilitated the manufacture, sale, distribution and/or storage of Illegal Product, Japan Tobacco Companies shall make commercially reasonable efforts, including termination of the business relationship, if appropriate and to the extent permitted by law, to require the First Purchaser to cease supplying Japan Tobacco Cigarettes to such Second Purchaser (or in the event of a Subsequent Purchaser, via Second and Subsequent Purchasers, as needed, down to the immediate supplier of Japan Tobacco Cigarettes to the relevant Subsequent Purchaser).5.13 OLAF may request in writing that:(a) a Certified Customer or Certified Contractor; or(b) a Second or Subsequent Purchaser;be terminated if OLAF obtains credible evidence that any such person or entity has, after the Execution Date of this Agreement, unlawfully, knowingly or recklessly engaged in or facilitated the manufacture, sale, distribution and/or storage of Illegal Product. Within 45 days of receiving a Request for Termination, Japan Tobacco Companies shall provide a response to OLAF giving its decision as to the Request for Termination. In the event that Japan Tobacco Companies reject the Request for Termination, they shall provide the reasons for that decision. In the event that OLAF, after considering Japan Tobacco Companies’ response, remains of the view that the relevant person or entity should be tenninated, OLAF and the relevant Japan Tobacco Companies shall meet and confer in a good faith effort to resolve the dispute. If the dispute has not been resolved within 30 days of this meeting or within 90 days of the Request for Termination, whichever is earlier, OLAF may bring the dispute before the arbitrator in accordance with Clause 14 of this Agreement and request an order from the arbitrator requiring that Japan Tobacco Companies terminate the business relationship with the relevant person or entity, and that the person or entity so terminated be listed as a Blocked Customer or a Blocked Contractor.If it is determined under this Clause that a Second Purchaser or Subsequent Purchaser is to be terminated, that determination shall be treated by Japan Tobacco Companies as Documentary or Other Substantive Evidence and Japan Tobacco Companies shall proceed under Clause 5.12 above on that basis.5.14 To the extent permitted by law, Japan Tobacco Companies shall maintain a list of Blocked Customers and Blocked Contractors. Unless otherwise agreed to by Japan Tobacco Companies and OLAF, a Blocked Customer or a Blocked Contractor shall remain so designated for 5 years after the termination of Japan Tobacco Companies’ business relationship with such Blocked Customer or Blocked Contractor and no such Blocked Customer or Blocked Contractor shall be permitted to conduct business with Japan Tobacco Companies, directly or indirectly, relating to the manufacture, sale, distribution and/or storage of Japan Tobacco Cigarettes during that time. After the expiration of the 5-year period, a Blocked Customer or a Blocked Contractor may reapply to become a Certified Customer or Certified Contractor and, at that time, shall be subject to the then applicable KYC programmes.Accountability for Payments5.15 Japan Tobacco Companies shall adhere to anti-money laundering policies, which are designed to ensure that they receive payment for Japan Tobacco Cigarettes solely from legitimate sources. The policies developed by Japan Tobacco Companies to monitor all payments made for Cigarettes sold and/or distributed by Japan Tobacco Companies shall include measures designed to prevent the use of the proceeds of any illegal activity, in any form whatsoever, as payment for Cigarettes.5.16 Japan Tobacco Companies shall only accept payments from Certified Customers or Certified Contractors in conformity with the invoice for the Japan Tobacco Cigarettes concerned.5.17 Japan Tobacco Companies shall require all Certified Customer and Certified Contractor payments to be made in the same currency and same amount as the invoice issued by Japan Tobacco Companies, and from bank accounts which have been identified pursuant to the KYC component of Japan Tobacco’s Programmes.5.18 Payments for each invoice or group of invoices due shall be made by a single payment instrument.5.19 Japan Tobacco Companies shall accept only the following methods of payment:(a) wire transfers or cheques from a bank account nominated during the KYC process and in the name of the Certified Customer or Certified Contractor or from a bank account in the name of a proven affiliate of the Certified Customer or Certified Contractor;(b) cashier’s cheques and bank drafts issued by a bank of good standing in the country in which the Certified Customer or Certified Contractor is located; or(c) cash payments, but only where the nature and scale of the Certified Customer’s or Certified Contractor’s business is such that it is not commercially feasible under local conditions to use any other form of payment.5.20 Exceptions to the requirements of sub-Clauses 5.15 to 5.19 may be made on a case-by-case basis and must be approved in advance and in writing by the Chief Compliance Officer. The reasons for granting any exception shall be documented, and shall become part of the Certified Customer or Certified Contractor records kept pursuant to sub-Clause 5.8.6. TRACKING & TRACING PROCEDURES6.1 Japan Tobacco Companies shall make commercially reasonable efforts within a reasonable time period, to develop and implement highly effective tracking and tracing procedures in order to combat Contraband Japan Tobacco Cigarettes. Towards this end, Japan Tobacco Companies shall maintain an ongoing research programme into new and/or enhanced Master Case, Carton and Pack marking technologies.6.2 Japan Tobacco Companies shall make commercially reasonable efforts to develop and implement such tracking and tracing technologies and procedures, provided that such are proven to be commercially and technologically feasible, to enable them progressively to mark Master Cases, Cartons and/or Packs of Japan Tobacco Cigarettes carrying International Japan Tobacco Trademarks with labels, codes or other information that allow for the complete identification of the:(a) Intended Market of Retail Sale;(b) First Purchaser name and order number;(c) shipment date;(d) shipment destination;(e) point of departure;(f) consignee;(g) product description;(h) date of manufacture of the product;(i) manufacturing facility at which the product was manufactured;(j) machine on which the product was manufactured; and(k) production shift during which the product was manufactured.6.3 The implementation of tracking and tracing technologies and procedures will exclude any products which are manufactured, sold or distributed in promotional packaging for promotional purposes, provided that the total volume of promotionally packaged Japan Tobacco Cigarettes carrying International Japan Tobacco Trademarks:(a) for any specific market, shall not exceed 175 million Cigarettes in any calendar year, and(b) for all markets, shall not exceed 750 million Cigarettes in total in any calendar year.Should Japan Tobacco Companies reasonably require an increase in the volume thresholds for promotionally packaged Japan Tobacco Cigarettes excluded from implementation of tracking and tracing technologies and procedures under this subClause, Japan Tobacco Companies may make a reasoned request to OLAF for such an increase. The EC and Participating Member States agree that consent to a reasoned request for a reasonable increase under this sub-Clause shall not be unreasonably withheld.Master Cases6.4 Japan Tobacco Companies shall make commercially reasonable efforts to implement, within 6 months of the Execution Date, tracking and tracing technologies and procedures to mark all Master Cases of Japan Tobacco Cigarettes carrying International Japan Tobacco Trademarks manufactured within the Member States and sold within or into those countries with unique machine-scannable and human-readable tracking codes that allow for the complete identification of the information as outlined in sub-Clause 6.2 above.6.5 Subject to sub-Clause 6.6 below, the same process outlined in sub-Clause 6.4 above will be implemented for Japan Tobacco Cigarettes carrying International Japan Tobacco Trademarks sold within or into the Member States but manufactured outside the EC within 12 months of the Execution Date.6.6 Japan Tobacco Companies shall make commercially reasonable efforts to implement within 18 months of the Execution Date, tracking and tracing technologies and procedures to mark all Master Cases of Japan Tobacco Cigarettes carrying International Japan Tobacco Trademarks manufactured in or sold into the countries listed in Annex 6 with unique machine-scannable and human-readable tracking codes that allow for the complete identification of the infonnation as outlined in sub-Clause 6.2 above, save that for Switzerland, the relevant period shall be 24 months.6.7 If, during any 12 month period after the Execution Date, OLAF learns of at least 5 seizures of Contraband Japan Tobacco Cigarettes, each totalling at least 4 million Cigarettes and each concerning the same Japan Tobacco Trademark and the same Intended Market of Retail Sale, OLAF may provide Japan Tobacco Companies, subject to the constraints of applicable law, with specific information concerning the seizures. After consultation with OLAF, Japan Tobacco Companies shall determine whether any further action is required. If, during any subsequent 12 month period, OLAF learns of 3 further seizures, each of which totals at least 4 million Cigarettes, and each of the same Japan Tobacco Trademark and Intended Market of Retail Sale, Japan Tobacco Companies shall implement tracking and tracing technologies and procedures to mark all Master Cases of Japan Tobacco Cigarettes carrying the particular Japan Tobacco Trademark for the Intended Market of Retail Sale in question, with unique machine-scannable tracking codes that allow for the complete identification of the infonnation as outlined, in sub-Clause 6.2 above, within a reasonable time frame not to exceed 12 months, provided that to do so would not result in economically disproportionate consequences for Japan Tobacco Companies. Japan Tobacco Companies and the EC shall meet and confer and attempt to resolve in good faith any dispute relating to whether implementation of tracking and tracing technologies pursuant to this sub-Clause would result in economically disproportionate consequences for Japan Tobacco Companies. If the dispute has not been resolved within 60 days of this meeting, any of the Parties may bring the dispute before the arbitrator in accordance with Clause 14 of this Agreement.6.8 Should Japan Tobacco Companies reasonably require additional time for the implementation of additional tracking and tracing programmes pursuant to sub-Clause 6.7 Japan Tobacco Companies may make a reasoned request to OLAF for such an extension. The EC and Participating Member States agree that consent to a reasoned request for a reasonable extension under this sub-Clause shall not be unreasonably withheld.Cartons and Packs6.9 Japan Tobacco Companies shall make commercially reasonable efforts to implement, within 30 months of the Execution Date, tracking and tracing technologies and procedures to mark Cartons and: (i) where and when needed; and (ii) as agreed by both OLAF and JTI, Packs of Japan Tobacco Cigarettes carrying International Japan Tobacco Trademarks manufactured within the Member States and sold within or into those countries with unique machine-scannable, and, where practicable, human-readable tracking codes that allow for the complete identification of the infomiation as outlined in sub-Clause 6.2 above. This implementation schedule shall be extended by one year for any product sold within or into the Member States but manufactured outside the Member States. Should Japan Tobacco Companies reasonably require additional time to implement tracking and tracing technologies and procedures to mark Cartons and/or Packs pursuant to this sub-Clause, Japan Tobacco Companies may make a reasoned request to OLAF for an extension. The EC and Participating Member States agree that consent to a reasoned request for a reasonable extension under this sub-Clause shall not be unreasonably withheld.6.10 Japan Tobacco Companies shall make commercially reasonable efforts to implement, within 42 months of the Execution Date, tracking and tracing technologies and procedures to mark Cartons and: (i) where and when needed; and (ii) as agreed by both OLAF and JTI, Packs of Japan Tobacco Cigarettes carrying International Japan Tobacco Trademarks manufactured in or sold into the countries set out in Annex 6 with unique machine-scannable and where practicable, human readable tracking codes that allow for the complete identification of the information as outlined in sub-Clause 6.2 above. Should Japan Tobacco Companies reasonably require additional time to implement tracking and tracing technologies and procedures to mark Cartons and/or Packs pursuant to this sub-Clause, Japan Tobacco Companies may make a reasoned request to OLAF for an extension. The EC and Participating Member States agree that consent to a reasoned request for a reasonable extension under this sub-Clause shall not be unreasonably withheld.Scanning Technologies & Databases6.11 Japan Tobacco Companies shall make commercially reasonable efforts to implement technologies which are capable of scanning all Master Cases, Cartons and/or Packs, within 3 months of becoming subject to marking pursuant to sub-Clauses 6.4 to 6.10 above, in order to capture and record the information as outlined in sub-Clause 6.2 above by means of the unique tracking codes and to link that information in a tracking and tracing database as described below.6.12 Japan Tobacco Companies shall make commercially reasonable efforts to provide OLAF and the Participating Member States with access to code reading technologies to enable the scanning of Master Cases, Cartons and/or Packs. Upon implementation of Master Case, Carton and/or Pack scanning pursuant to Section 6.11 above, Japan Tobacco Companies shall make commercially reasonable efforts to provide OLAF and the Participating Member States with remote automated access to the dedicated searchable tracking and tracing database referred to above.6.13 Electronic records created and stored within the dedicated tracking and tracing database shall be retained for at least five years.6.14 The Parties agree that information contained on the tracking and tracing database is confidential business information, which must be used only for the purposes specified in this Agreement and must not be disclosed to third parties, unless required by law.6.15 The Parties agree that, at the appropriate time, having received the necessary information from Japan Tobacco Companies, OLAF will be responsible for making all reasonable efforts to train and inform all authorised persons and entities with access to the tracking and tracing databases about the handling and importance of the secrecy and confidentiality of the passwords, security features and information contained in the tracking and tracing databases. In the case of a knowing and wilful breach of the confidentiality of the tracking and tracing databases or of the information contained therein by any duly authorised law enforcement authorities, or other EC or Participating Member State agent or representatives who receive tracking and tracing information pursuant to this Agreement, other than a person acquiring the tracking and tracing data through compulsory legal process, Japan Tobacco Companies may set off against payments due under i) Clause 7 to the relevant Participating Member State; and, ii) to the extent necessary, under Clause 8 hereinafter any demonstrable and material loss or damage to it resulting from any claims made against Japan Tobacco Companies as a result of damages sustained due to the unauthorised use or disclosure by the EC or Participating Member States of passwords, security features or information contained in the tracking and tracing databases. The Parties agree that the mere fact that information provided to the EC and/or the Participating Member States has been made public shall not, in and of itself, constitute conclusive evidence of a breach of the confidentiality of the tracking and tracing database information. Any dispute as to: (i) whether the breach was knowing and wilful; (ii) whether Japan Tobacco Companies have suffered demonstrable loss or damage resulting from the unauthorised use of passwords, security features or information contained in the tracking and tracing databases; (iii) whether such a loss is significant or de minimis; or (iv) the amount of such loss or damage, shall be settled, if not agreed by the Parties, by the arbitrator in accordance with Clause 14 of this Agreement.Futher Sales6.16 Japan Tobacco Companies, OLAF and Participating Member States recognise that in certain circumstances, effective tracking and tracing to prevent the trade in Illegal Product can be enhanced when First Purchasers maintain additional databases that are similar to the tracking and tracing database to be maintained by Japan Tobacco Companies, regarding Second Purchaser sales or Subsequent Purchaser sales. For this purpose, Japan Tobacco Companies shall make commercially reasonable efforts to develop and expand the scope of their tracking and tracing database technology to cover the sales of First Purchasers, Second Purchasers and Subsequent Purchasers (where feasible) and to give OLAF and Participating Member States access to any such database. In any event, Japan Tobacco Companies shall make commercially reasonable efforts to deploy their tracking and tracing technology to those First Purchasers, Second Purchasers and Subsequent Purchasers that voluntarily request such deployment.Intended Market of Retail Sale Manuals6.17 Japan Tobacco Companies shall provide information on markings and markets on the Execution Date. Such information shall include 30 copies of a reference manual designed to allow for the determination of the Intended Market of Retail Sale of all Japan Tobacco Cigarettes sold worldwide.6.18 For the avoidance of doubt, none of the tracking and tracing obligations of Japan Tobacco Companies contained in this Clause 6 shall apply:(a) to any tobacco product in any non-Cigarette form, including “roll-your-own” tobacco;(b) to countries where, under local statutory laws in existence at the Execution Date, a system of tracking and tracing is applicable and is in operation in relation to the production of Japan Tobacco Cigarettes which provides substantially equivalent information to that required under sub-Clause 6.2, as certified by Japan Tobacco Companies. Japan Tobacco Companies shall make commercially reasonable efforts to integrate any information as outlined in sub-Clause 6.2 above, captured and recorded under any local system of tracking and tracing, into the dedicated searchable tracking and tracing database referred to in sub-Clause 6.12 and to provide OLAF and the Participating Member States with remote automated access to the same; and(c) to Japan Tobacco Cigarettes carrying Japan Tobacco Trademarks or International Japan Tobacco Trademar …
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