POSIX®: Certified by IEEE and The Open Group

Certification Agreement

Issue 1.0.1, December 5, 2012



This Certification Agreement ("Agreement") is made and entered into by and between the following Parties: The Open Group, Thames Tower, 37-45 Station Road, Reading, England, RG1 1LX , and the Supplier.

Whereas, the Supplier wishes to submit a product for certification in the POSIX®: Certified by IEEE and The Open Group program ("the Certification Program"); Whereas the product is uniquely defined in the Registration Form; and Whereas, The Open Group is the Certification Authority ("CA") operating the Certification Program in accordance with the terms of the POSIX Certification Policy.

Now therefore, in consideration of the mutual rights and obligations of the Parties set forth below, the Parties agree as follows:

1. Definitions:

For purposes of this Agreement, the following terms shall have the following meanings:
 
Certification Policy The "POSIX®: Certified by IEEE and The Open Group, Certification Policy" document, as amended from time to time by IEEE and The Open Group, currently available at http://posixcertified.ieee.org/ .
Certification Register The official list of all Certified Products, which is maintained by the Certification Authority and made publicly available via the internet.
Certification System Deficiency An agreed error in the certification system, which is inhibiting the certification process. A Certification System Deficiency is one possible outcome of a Problem Report.
Certified Product A Product that has successfully completed the certification process and for which the Supplier of such Product has been notified in writing by the Certification Authority that certification has been achieved.
Conformance Requirements A definition of the mandatory and optional behavior a product must implement in order to be considered conformant.
Interpretation Decision made by the Specification Authority that elaborates or refines the meaning of an IEEE POSIX standard, or a standard or specification referenced by an IEEE POSIX standard. An Interpretation is one possible outcome of a Problem Report.
Person Includes a body of persons whether or not incorporated. 
Registration Form A web form completed by the Supplier to register a particular Product for certification. The form contains information on the Supplier and the Product to be certified.
Test Suite Deficiency An agreed error in a test suite, which is causing the test suite to produce an incorrect result code that impacts certification. A Test Suite Deficiency is one possible outcome of a Problem Report.

2. The Certification Authority's Obligations

Certification

The CA will audit all certification-related information provided by the Supplier, including the test suite results. The CA will check to make sure the submitted information demonstrates that the product passed the formal testing process and the product meets the applicable Conformance Requirements. The CA will complete the audit and notify the Supplier via electronic mail of the audit result within 6 business days of receipt of a complete submission. If an incomplete submission is received, the supplier will be notified within 6 business days via electronic mail with a list of all the missing or incomplete items. Once the completed submission is received, the audit will resume, with an additional 6 business day turnaround.

If the audit indicates that the Conformance Requirements have been met, the CA will notify the Supplier via electronic mail of the successful certification, and, if confidentiality has not been requested as in sub-clause 4 item iv below, enter the Certified Product into the Certification Register.

If the audit indicates that the Conformance Requirements have not been met, the CA will notify the Supplier of the deficiencies which must be corrected within 60 calendar days for certification to be successful. The certification fee covers only one set of corrective actions and resubmission. A further fee may apply for additional work beyond this.

Renewal

After a product has been successfully certified and is due for certification renewal, the CA will send a renewal reminder notice by electronic mail to the Supplier at or about 60 days but no less than 45 days prior to the renewal due date.

Anonymity of Appeals

In the event that the Supplier desires to appeal a decision made by The Open Group or the IEEE by invoking the appeals process defined in the Certification Policy, and wants the appeal to be anonymous, the CA will facilitate an anonymous review on behalf of the Supplier.

3. The Supplier's Obligations

In addition to the certification-related information provided as part of the registration process, the Supplier undertakes to answer all reasonable additional questions the CA may raise.

Registration and Payment

The Supplier must complete a web-based registration form, thoroughly defining the product to be certified.  To complete the submission, the Supplier must formally accept the terms of this Agreement, by clicking on the "I accept" button below, the terms of this Agreement and authorize payment of the applicable certification fees when due.

Payment is required to complete a full submission for registration. Payment may be either by credit card at the time of registration, or by check or wire transfer received by the CA in advance of registration. The CA will not process the registration until payment has been received.

Testing

Formal testing must be completed using a current authorized test suite(s). The CA will maintain a list of the current version(s) of each test suite valid for use in the Certification Program at http://get.posixcertified.ieee.org/docs/testsuites.html . This will also include directions on how to obtain the test suites.

Certification

After completing formal testing, the Supplier agrees to provide the test suite results to the CA, along with references to all relevant Interpretations, Test Suite Deficiencies, or Certification System Deficiencies to explain all untested or failed tests. The Supplier also agrees to comply with the CA's reasonable requests for clarification or rework regarding the completeness, correctness or consistency of the provided information.

Warranty of Conformance

By clicking the "I accept" button below, the Supplier hereby warrants and represents that the product identified in the Registration Form, as entered in the web-based certification system, meets the Conformance Requirements at the time of certification and will continue to meet the Conformance Requirements throughout the time in which the product is certified, in accordance with the Certification Policy. If the Supplier fails to ensure continued compliance with the Conformance Requirements, the CA may revoke the certification. For the avoidance of doubt, any demonstrable shortfall with respect to the conformance requirements is grounds for withdrawal of certification, whether or not that shortfall is apparent from the testing and certification process itself.

Renewal

During the period of this Agreement, renewal by the Supplier of certification is required periodically at intervals defined in the Certification Policy. Failure to renew within 30 days after the due date will result in removal of the Certified Product from the Certification Register. Renewal incurrs a renewal fee.

4. Confidentiality

  1. The CA shall, except where a provision of this Agreement provides otherwise, maintain in confidence all information the Supplier discloses to the CA in relation to this certification. No license, express or implied, under any trademark or copyright is granted by the Supplier to the CA by virtue of such disclosure and the CA shall not use any such information except for the purposes of this Agreement.  The CA's obligations under this sub-clause shall be limited to taking such steps as it ordinarily takes to preserve the most important of its own confidential information. The obligations of non-disclosure and non-use set out in this Agreement shall not apply to any item of information which:
    1. Is in the public domain at any time (but without prejudice to any Person's rights of action against another Person who wrongfully causes or permits such information to be in the public domain),
    2. Was rightfully in the receiving Person's possession without obligation of confidence prior to its disclosure pursuant to this Agreement, or is subsequently independently developed by the receiving Person's employees having no access to the information disclosed hereunder,
    3. Is subsequently rightfully obtained without obligation of confidence by the receiving Person from a source other than the Supplier as evidenced by written records,
    4. Is required to be disclosed by order of any court of competent jurisdiction,
    PROVIDED that no right or interest under any license, patent, or otherwise shall be acquired by the recipient of any information by virtue of the application of this clause.
  2. Information regarding the results of using the test suite(s) shall not be disclosed in any publicly available document or to any third party by the CA, the Supplier, or any party acting on the Supplier's behalf.
  3. The CA may disclose the Supplier's confidential information to those of its employees who reasonably require to have access to such information. However, the CA may not disclose the Supplier's confidential information to any employee of a member company in The Open Group or member of the IEEE, unless another exception to the obligations under this sub-clause applies. For the avoidance of doubt, the CA may disclose the Supplier's confidential information to the Supplier's employees, or employees of any party acting on the Supplier's behalf.
  4. To enable the Supplier to keep the fact of certification confidential for a period of up to six months from the date of written notice by the CA that the product has achieved certification, the Supplier's identity, the fact of certification, and the name of the Certified Product (the Certification Information) will be kept subject to the disclosure and use restrictions set out in this clause. During this period, the Supplier may not publicly claim that the Certified Product is or has been certified, or make any representation of the Certified Product's compliance with the IEEE Standard(s) without first informing the CA that the confidential period has expired.  Certification Information will cease to be held confidential upon the earlier of notice by the Supplier that the confidential period has expired or at the end of the six-month period.
  5. Except for disclosure to the CA for the purpose of this certification, the results of conformance testing and any other information about the Certified Product obtained during testing shall be held confidential.

5. Liability and Indemnity

5.1 Liability

THE SUPPLIER ACKNOWLEDGES THAT BECAUSE OF THE SPECIAL NATURE OF THE CERTIFICATION AUTHORITY IT IS REASONABLE FOR THE CERTIFICATION AUTHORITY TO EXCLUDE LIABILITY AS SET OUT BELOW AND FOR THE SUPPLIER 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 THIS AGREEMENT).

THE CERTIFICATION AUTHORITY ON ITS OWN BEHALF AND ON BEHALF OF ITS OFFICERS, EMPLOYEES AND AGENTS HEREBY EXCLUDES ALL LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR NON-USE BY ANY PERSON OF ANY INFORMATION PROVIDED BY THE CERTIFICATION AUTHORITY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. IN NO EVENT SHALL THE CERTIFICATION AUTHORITY BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSSES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, CONTRACTS, PRODUCTION OR USE).

5.2 Indemnity

The Supplier shall indemnify and hold harmless the CA together with its officers, servants, agents, subcontractors, and shareholders of the CA and their servants when engaged in activities on behalf of the CA but only to the extent that they are acting in that capacity (together the ''Indemnified'') against any and all demands, claims, and liability for direct losses, damages, settlements and costs (including lawyers' fees) of any nature whatsoever asserted against or suffered by the Indemnified, but limited to demands and claims from a third Person, and liability incurred from such demands, and claims arising out of the Supplier's manufacture, use, or supply of the Products, provided that
  1. any such demand and claim is based on the Certification Program under this Agreement and not caused by any criminal action, gross negligence or tort by the Indemnified,
  2. the Indemnified notifies the Supplier within ten days of any such demand and claim, and refrains from any action on account of such demand and claims which may prejudice the Supplier, and
  3. the Supplier is given full authority and sole control to defend and settle any such demands and claims.
The CA shall take all reasonable steps to limit such damage or loss.

No provision of this clause shall apply in any circumstances or in respect of any liability or class of liability to the extent that it may not apply in accordance with applicable law. In the event of such a provision being held to be inapplicable or invalid the Parties will make such amendments to this Agreement by the addition or deletion of wording, or otherwise, so as to remove the inapplicable or invalid part of the provision but otherwise retain the provision to the extent permissible under applicable law.

6. General

Entire Agreement

This Agreement including any documents referred to therein (as amended from time to time) together with all other forms relating to this Agreement submitted and accepted by both Parties constitutes the entire agreement and supersedes all prior oral or written agreements, understandings, or arrangements between the Parties relating to such subject matter. Neither Party shall be entitled to rely on any agreement, understanding, arrangement, or representation relating to the subject matter of this Agreement which is not expressly contained in this Agreement and no change may be made to this Agreement except in writing and signed by duly authorized representatives of both Parties.

Waiver of Rights under this Agreement

No failure or delay on the part of either of the Parties to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy as the case may be.

Notices

Any notice or other document to be given under this Agreement shall be in writing in the English language and, except in circumstances where this Agreement specifically provides for notices by electronic mail, shall be deemed to have been duly given if sent by hand or by recorded delivery or registered post, or by facsimile (subsequently confirmed by post) to a party at the specified address for that party,  unless a different address has been notified to the other in writing for this purpose. The specified address for the CA is the address set out above, and the specified address for the Supplier is the address provided for the primary contact on the Registration Form,  as entered into the web-based certification system. Notices shall be deemed to have been received by the addressee within 72 hours of posting as above or within 24 hours if sent by hand or facsimile to the addressee's correct address.

Interpretation

The headings in this Agreement are inserted only for convenience and shall not affect its construction.

Where appropriate words denoting the singular only shall include the plural and vice versa.

Term and Termination.

This Agreement comes into effect at the date of acceptance and will expire only if explicitly terminated:
  1. At any time upon six months' written notice by either Party to the other; or
  2. If a period of 30 days has elapsed from one Party notifying the other Party of a breach of this Agreement or of the terms of the Certification Policy, and such a breach has not been rectified to the satisfaction of the other Party.
Notwithstanding the termination of this Agreement for any reason, the obligations of non-disclosure in respect of any confidential information disclosed prior to such termination shall survive for a period of 5 years following such termination.

Governing Law

This Agreement shall be governed by the laws of England and the Parties hereby submit to the non-exclusive jurisdiction of the English courts.

7. Fees

The Fees described at http://get.posixcertified.ieee.org/docs/Fee_Schedule.html are quoted net of all applicable taxes and duties which, where appropriate, will be payable by the Supplier to the CA (or to the relevant tax authorities as applicable) in addition.

Payment

The CA will charge the applicable certification fee upon submission of a completed product application. The supplier agrees to incurr the applicable fee for each product application.

Fees are payable in U.S. dollars and will be debited against the credit card provided to the CA in the web-based certification system or by other arrangement with the CA (check or wire transfer). Fees are non-refundable.

8. Execution

By signing below,  the Supplier:
  1. Hereby acknowledges reading and understanding of this agreement.
  2. Agrees to be bound by the terms of the Certification Policy and this Certification Agreement.
  3. Warrants and represents that all products which share the Product Name defined in the Registration Form , as entered in the web-based certification system, meet the applicable conformance requirements.
  4. Warrants that NO MATERIAL CHANGES have been made to this Agreement since it was made available to the Supplier by the CA in an electronic format;
and by signing below, the Supplier agrees that all these obligations, and those described in the Confidentiality and Indemnity clauses of this Agreement shall survive the termination of this Agreement.
 

__________________________________ (Signature)

__________________________________ (Print Name)

__________________________________ (Title)