INDIA Law and Practice Contributed by: Shivalik Chandan, Hardik Choudhary, Dhruv Singh and Arjun Khurana, G&W Legal
to engage in competing businesses in the future, or to deal with other parties that may be seen as competitors of the licensor. Provisions in agree - ments that have the propensity to violate Indian antitrust laws may be held to be void. Similarly, provisions within these agreements that are overly restrictive on the business activi - ties of the licensee, as well as the owners of such licensee, may be seen as agreements in restraint of trade and, as a result, unenforceable. Intellectual Property Under Indian law, patent licences are only valid if made by written agreement. Such licence needs to be registered with the Controller of Patents by way of submission of a prescribed form with the requisite fee. Similarly, copyright licences are required to be in writing and duly executed in accordance with the applicable law. However, there is no express requirement in the law for such licences to be registered with the Copyright Office. Confidentiality Strong confidentiality provisions in an agree - ment where information is the most important asset are a must. Even prior to the execution of the actual agreement, discussions between the parties should be subject to an NDA. The licen - sor should specifically make a point of marking information that is not for outside eyes as confi - dential. The confidentiality provisions within the agreement should specify the requirement for access control measures, as well as the tech - nological measures that the parties should put in place. Agreements should also specify the period after the termination and/or expiry of the licence agreement pursuant to which the confi - dentiality obligations will continue to be appli - cable.
Various provisions of law may classify the unau - thorised sharing of confidential information as a “breach of trust”, while the IT Act also provides remedies against breaches of confidentiality as
they relate to electronic records. Indemnity and Related Provisions
Complications with regard to seeking guaran - tees from owners of the licensee have already been highlighted above in the heading titled “Foreign Exchange Regulation”. In addition, foreign licensors should be cognisant of the fact that liquidated damages according to Indian law may not be permitted if they are held to be unreasonable, and may not be inserted with the intent of penalising the breaching party. No specific legal requirements exist for telecoms service agreements in India. Consideration must be paid to ensuring that the service provider has all the requisite licences/permits/certifica - tions in place to provide the telecoms services, and as mentioned under 4.2 Compliance and Governance , due diligence and ensuring ade - quate contractual provisions relating to indem - nity and liability are essential. Such agreements must clearly spell out all relevant service levels required by the service recipient as well, and such terms are governed contractually in India. In addition to these, the general considerations relating to agreements in India as highlighted in 7.1 Legal Framework Challenges must also be kept in mind. Interconnection agreements in India are regu - lated under the Telecommunication Intercon - nection Regulations 2018 (the “Interconnection Regulations”) issued by TRAI. The Interconnec - tion Regulations specify various aspects that 7.2 Service Agreements and Interconnection Agreements
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