Common use of Open Source Assurance Program Clause in Contracts

Open Source Assurance Program. If an unaffiliated third party initiates a legal action against Client alleging that Client's use of Covered Software directly infringes the third party's copyrights, patents or trademarks, or misappropriates the third party's trade secret rights ("Third Party Rights") (such action, a "Claim") and Client has complied with the terms of this Agreement and the Support Agreement(s), then: Subject to the other terms in this Agreement, The OpenNMS Group will (i) defend Client against the Claim and (ii) pay costs, damages and/or attorneys fees that are included in a final judgment against Client (without right of appeal) or in a settlement approved by The OpenNMS Group that are attributable to Client's use of the Covered Software; and If Client's use of Covered Software is found by a court to infringe Third Party Rights (or The OpenNMS Group believes that such a finding is likely), then The OpenNMS Group will, at its expense and option: (i) obtain the rights necessary for Client to continue to use the Covered Software consistent with the Support Agreement(s); (ii) modify the Covered Software so that it is non-infringing; or (iii) replace the infringing portion of the Covered Software with non-infringing code of similar functionality (subsections (i), (ii) and (iii) are the "IP Resolutions"); provided that if none of the IP Resolutions is available on a basis that The OpenNMS Group finds commercially reasonable, then The OpenNMS Group may terminate the Support Agreement(s) without further liability under this paragraph, and, if Client then returns the Covered Software that is subject to the Claim, The OpenNMS Group will refund any prepaid subscription fees related to Covered Software. As conditions precedent to The OpenNMS Group's obligations to Client under this Section 1, Client must comply with the following conditions. Client must (i) be current in the payment of all applicable fees prior to a Claim or threatened Claim; (ii) notify The OpenNMS Group promptly, but in no event later than ten (10) days of receipt of any Claim for which relief is sought under this Agreement (including evidence of the Claim brought); (iii) provide The OpenNMS Group with the right to control and conduct the defense of the Claim with counsel of its choice and to settle such Claim at The OpenNMS Group's sole discretion; and (iv) cooperate with The OpenNMS Group in the defense of the Claim. Notwithstanding the foregoing, The OpenNMS Group will have no obligations under Section 1 with regard to any Claim that is based upon (I) a modification of Covered Software made by Client (other than at The OpenNMS Group's written direction); (II) The OpenNMS Group's compliance with any designs, specifications or instructions provided by Client; (III) use of the Covered Software in combination with products, data or business methods not provided by The OpenNMS Group, if the infringement or misappropriation would not have occurred without the combined use; (IV) facts or circumstances constituting a breach of any Support Agreement; (V) use of any release of the Covered Software if, as of the date of a Claim or threatened Claim, the infringement or misappropriation would not have occurred through use of a more recent release of the Covered Software; (VI) any use of the Covered Software by Client other than for Client's internal use (such use not to include web hosting services, managed services, Internet service provider (ISP) services or similar uses); (VII) use by Client after notice by The OpenNMS Group to discontinue use of all or a portion of the Covered Software; or (VIII) a Client's claim or lawsuit against a third party.

Open Source Assurance Program. If an unaffiliated third party initiates a legal action action, suit or proceeding against Client alleging that includes an allegation that Client's use of Covered Software directly infringes the third party's copyrights, patents or trademarks, or misappropriates the third party's trade secret rights ("Third Party Rights") (such legal action, a "“Claim"”) and Client has complied with and remains in compliance with the terms of this Agreement and the Support Agreement(s), then: Subject , subject to the other terms in this Agreement, The OpenNMS Group Red Hat will (i) defend Client against the Claim and (ii) pay costs, damages and/or attorneys and attorneys’ fees that are included in a final judgment against Client (without right of appeal) or in a settlement approved by The OpenNMS Group Red Hat, that are attributable to Client's use of the Covered Software; and If Client's use of Covered Software is found by a court with respect to infringe Third Party Rights (such alleged or The OpenNMS Group believes actual infringement. In addition, Client agrees that such a finding is likely)Red Hat may, then The OpenNMS Group willat any time, at its sole expense and option: (i) obtain the rights necessary for Client to continue to use the Covered Software consistent with the Support Agreement(s); (ii) modify the Covered Software so that it is non-non- infringing; or (iii) replace the infringing portion of the Covered Software with provide non-infringing code of similar functionality to replace the allegedly infringing portion of the Covered Software (subsections (i), (ii) and (iii) are the "“IP Resolutions"”); provided that that, after a Claim, if none of the IP Resolutions is available on a basis that The OpenNMS Group Red Hat finds commercially reasonable, then The OpenNMS Group Red Hat may terminate the Support Agreement(s) without further liability under this paragraphAgreement for Client’s further use of the Covered Software, and, if Client then returns the Covered Software that is subject to the Claim, The OpenNMS Group Red Hat will refund any the remaining pro-rata prepaid subscription fees related to such Covered Software. As conditions precedent to The OpenNMS GroupRed Hat's obligations to Client under this Section 1, Client must comply with the following conditions. Client must (i) be current in the payment of all applicable fees prior to a Claim or threatened (including Support Agreement(s)) at the time of the Claim; (ii) notify The OpenNMS Group Red Hat promptly, but in no event later than ten (10) days of receipt of any Claim for which relief unless Red Hat receives the notice and is sought under this Agreement (including evidence of the Claim brought)not prejudiced by any delay; (iii) within twenty-one (21) days of acknowledgment from Red Hat of its obligations under this Agreement, provide The OpenNMS Group Red Hat with the right to control and conduct the defense of the Claim with counsel of its Red Hat’s choice and to settle such Claim at The OpenNMS Group's Red Hat’s sole discretion; and (iv) cooperate with The OpenNMS Group Red Hat in the defense of the Claim. Notwithstanding the foregoing, The OpenNMS Group Red Hat will have no obligations under Section 1 with regard to any Claim that is based upon based, in whole or in part on (Ii) a modification of Covered Software not made by Client (other than or at The OpenNMS Group's the written direction)direction of Red Hat; (IIii) The OpenNMS GroupRed Hat's compliance with any designs, specifications or instructions provided by Client; (IIIiii) use of the Covered Software in combination with productsa product, data process, step, structure, data, or business methods method not provided by The OpenNMS GroupRed Hat, if the infringement or misappropriation would not have occurred without the combined use; (IViv) facts or circumstances constituting a breach of any a Support Agreement; (Vv) use of any release of the Covered Software if, as of the date of a Claim or threatened Claim, if the infringement or misappropriation specifically identified in the Claim would not have occurred or would have been significantly less likely through use of a more recent release of the Covered Software or after notice by Red Hat (whether before or during pendency of a Claim) to discontinue use of all or a portion of the Covered Software; (VIvi) any use of the Covered Software by Client other than for Client's own internal use (such for the avoidance of doubt, internal use does not include, for example, providing third party use or access to include web hosting servicesABIs, managed services, Internet service provider (ISP) services APIs or similar uses); (VII) use by Client after notice by The OpenNMS Group to discontinue use of all or a portion binaries of the Covered Software, or similar uses or making, offering to sell, selling, distributing and/or importing Covered Software or products that include Covered Software); or (VIIIvii) a is filed in response to Client's claim or lawsuit against a third party. If the Claim includes allegation(s) regarding matters other than Covered Software, Client is responsible for the proportional share of fees and costs in defending such allegations and Red Hat will only be responsible for the proportional share of fees and costs in defending allegations regarding Covered Software.