The Open Group Gold and Silver Memberships

Definition of Terms

Confidentiality

Member agrees to the following obligations of confidentiality with respect to Information received through participation in the Forum(s):

• Any specifications, drawings, sketches, models, samples, data, computer programs or documentation or other technical or business information in written, graphic or other tangible or electronic form furnished or disclosed to The Open Group or any other party in the course of the Forums’ activities and/or as a result of Member’s use of any materials (“the Information”) should be deemed the property of The Open Group, and shall be returned to The Open Group upon request. Member agrees to maintain all Information in confidence, using the same degree of care Member uses to protect its own proprietary information of like importance, but in no event less than a reasonable degree of care.

• Member agrees to disclose Information only to its employees and agents of Member with a need to know for purposes of advancing the work of the Forums and to require each such employee or agent to comply with the confidentiality terms set out in this Agreement.

• The provisions set out in these Terms and Conditions shall not apply to Information which:
  i) is or becomes a part of the public domain,

  ii) is demonstrably known to Member prior to disclosure within the Forums,
  iii) was independently developed by the Member outside of the Membership Agreement,
  iv) was rightfully obtained by Member from third parties with no obligation of confidentiality.

• The obligations of confidentiality set out above shall remain in effect for the duration of the Membership Agreement and two years subsequent to termination thereof.

Representation and Warranty

ALL MATERIALS AND INFORMATION PROVIDED BY THE OPEN GROUP ARE PROVIDED “AS IS”, AND THE OPEN GROUP MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE OPEN GROUP BE LIABLE FOR ANY LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE FOR ANY LOSSES OR DAMAGE ARISING OUT OF OR RELATING TO THIS AGREEMENT. IN NO EVENT SHALL THE OPEN GROUP BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSSES INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, CONTRACTS, PRODUCTION OR USE.

The Member acknowledges that because of the special nature of The Open Group it is reasonable for The Open Group to exclude liability as above and for the Member to take measures, including insurance where appropriate, to mitigate or prevent any potential losses that may arise (provided that such measures are not in breach of these Terms and Conditions).

If any third party makes or threatens to make any claim (or if, in the opinion of The Open Group such a claim is likely) that the use by the Member of any Materials or other Information provided by The Open Group infringes any intellectual property right of such third party, The Open Group may, at its option, either secure the Member’s right to continue using the Materials, make the Materials non-infringing or withdraw the Materials on one month’s written notice whereupon the Member shall not be authorized to make any further use of the materials. This sub-clause states the entire responsibility of The Open Group concerning infringement of third party intellectual property rights.

Renewal

The Membership Agreement shall automatically renew upon each anniversary date, at the then applicable fee published here, unless terminated in accordance with "Termination" below.

Termination

The Membership Agreement may be terminated:

• By either party giving to the other sixty (60) days notice in writing before any anniversary of the date hereof.
• By The Open Group on written notice to the Member if the Member has committed any material breach of the Membership Agreement and in the case of a breach capable of being remedied, has failed to remedy the breach, within 30 days after the receipt of a written request in writing from The Open Group notifying the Member of such breach.
• By The Open Group on written notice to the Member if the Member fails to pay any sum(s) due to The Open Group under the Membership Agreement and such sum(s) remain unpaid for thirty (30) days after written notice from The Open Group that such sum(s) have not been paid.

For the avoidance of doubt, termination of the Membership Agreement for any reason shall not entitle the Member to any refund of the annual sum due under the Membership Agreement.

Modification

These Terms and Conditions may be modified by the inclusion by The Open Group of additional requirements or terms on ninety (90) days written notice to the Member. In the event Member does not agree to such additional requirements, Member may resign from The Open Group upon thirty (30) days written notice. Member shall not be entitled to a refund of membership fees pursuant to such resignation.

Governing Law

The Membership Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts.

If any provision of the Membership Agreement is for any reason declared illegal in any country, all other provisions shall remain in full force and effect to the fullest extent permitted by such law.

For the avoidance of any doubt, any such finding of illegality in any country shall not affect the validity of any provisions of the membership Agreement in other countries.

Notification

The Open Group is required by the National Cooperative Research and Production Act (NCRPA) to notify the US Department of Justice and the Federal Trade Commission of new members. Member agrees that execution of this Agreement authorizes The Open Group to fulfill its reporting obligations on Member’s behalf to U.S. Government as cited in the NCRPA.