Common use of No Open Source Software Clause in Contracts

No Open Source Software. Supplier represents and warrants that, unless otherwise agreed in writing by Fresenius Kabi, to the best of its knowledge after proper due diligence and inquiry, its software product and/or software/hardware product to be provided to Fresenius Kabi for use or distribution by Fresenius Kabi (including in Fresenius Kabi's product packages or through a download from Fresenius Kabi's website, or otherwise) does not include any portion of any Open Source Software (as defined below). SUPPLIER AGREES THAT IT WILL DEFEND, INDEMNIFY AND HOLD HARMLESS FRESENIUS KABI, ITS AFFILIATES AND ITS AND ITS AFFILIATES’ OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES, AND CUSTOMERS AGAINST ANY AND ALL CLAIMS, LAWSUITS, LIABILITIES, JUDGMENTS, DAMAGES, AND EXPENSES (INCLUDING ATTORNEYS' FEES ACTUALLY INCURRED) ARISING FROM A BREACH BY SUPPLIER OF ANY OF ITS OBLIGATIONS OR REPRESENTATIONS HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY CLAIMS IN CONNECTION WITH ANY SUCH BREACH. For the purpose of this representation and warranty, the term Open Source Software means any software licensed under the terms that may create an obligation (a) to disclose or distribute source code; or (b) to grant a license for the purpose of making derivative works; or (c) to grant a right, license, covenant, or immunity in connection with intellectual property rights. By means of example and without limitation Open Source Software is software licensed under GNU General Public License (“GPL”), Affero General Public License (“AGPL”), Lesser General Public License (“LGPL”), Common Public License, the Artistic License, and Mozilla Public License.