Common use of Intellectual Property; Computer Software Clause in Contracts

Intellectual Property; Computer Software. (1) Section 5.11(a) of the Disclosure Letter lists all material Intellectual Property including, without limitation, trademarks, trade names, service marks, service names, ▇▇▇▇ registrations, logos, assumed names, copyrights, copyright registrations, patents and all applications therefor that are owned by the Seller and used by the Seller in the operations of the Business, and there are no pending or threatened claims by any Person relating to the Seller's use of any Intellectual Property. Upon consummation of the transactions contemplated hereby, the Buyer will acquire a valid and enforceable right to use all material Intellectual Property that is owned by any Person other than the Seller and is used by the Seller in the operations of the Business. Except as set forth in section 5.11(a) of the Disclosure Letter, the Seller has such rights of ownership (free and clear of all Liens) of, or such rights by license, lease or other agreement to use (free and clear of all Liens) the Intellectual Property as are necessary to permit the Seller to conduct its business and the Seller is not obligated to pay any royalty or similar fee to any Person in connection with the Seller's use or license of any of the Intellectual Property. (2) Except as set forth in section 5.11(b) of the Disclosure Letter, the Seller has such rights of ownership (free and clear of all Liens) of, or such rights by license, lease or other agreement to use (free and clear of all Liens), the computer software programs including, without limitation, application software that are used by the Seller and that are material to the conduct of the Business as currently conducted, as are necessary to permit the conduct of the Business as currently conducted. With respect to the Business, none of the Seller's ownership rights or rights to use any of the computer programs referred to above will be adversely affected by any of the transactions contemplated hereby.

Intellectual Property; Computer Software. (1a) Section 5.11(a) The Company and its Subsidiaries own or otherwise hold the right to use all Intellectual Property Rights necessary for the conduct of the Disclosure Letter lists all material Intellectual Property including, without limitation, trademarks, trade names, service marks, service names, ▇▇▇▇ registrations, logos, assumed names, copyrights, copyright registrations, patents business of the Company and all applications therefor that are owned its Subsidiaries as currently conducted or as currently proposed to be conducted by the Seller and used by Company or any of its Subsidiaries (the Seller in the operations of the Business, and there are no pending or threatened claims by any Person relating to the Seller's use of any Intellectual Property“Necessary IP Rights”). Upon The consummation of the transactions contemplated herebyby this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights. (b) There are no legal Proceedings pending or, to the Buyer will acquire a valid and enforceable right to use all material Knowledge of the Company, threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property that is owned by Rights of any Person other than the Seller and is used by the Seller in Company or any of its Subsidiaries or any of their respective products or services, or (ii) challenging the operations scope, ownership, validity, or enforceability of the Business. Except as set forth in section 5.11(a) Company IP or of the Disclosure LetterCompany and its Subsidiaries’ rights under the Necessary IP Rights. None of the Company or its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. (i) The Company and its Subsidiaries hold all right, title and interest in and to the Seller has such rights of ownership (Company IP, free and clear of any Liens, except for Permitted Liens, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, and (iii) there are no restrictions on the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products. (d) Section 4.20(d)(i) of the Company Disclosure Schedule contains a true and complete list of all LiensRegistered IP as of the date hereof. The Company and its Subsidiaries have taken all actions reasonably necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to office actions and disclosure of any required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate governmental authorities. Section 4.20(d)(ii) of the Company Disclosure Schedule includes a true and complete list of all material actions that must be taken within 120 days of the date hereof with respect to any of the Registered IP. The Company and each of its Subsidiaries have complied with all applicable notice and marking requirements for the Registered IP. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and, to the Knowledge of the Company, all Registered IP is valid and enforceable. (e) Section 4.20(e) (i) of the Company Disclosure Schedule contains (A) a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property (excluding any Publicly Available Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clause (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms); (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. Section 4.20(e) (ii) of the Company Disclosure Schedule contains a true and complete list of (A) all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof to a third party and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. (f) The Company and its Subsidiaries have taken all reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. (g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers or employees) who have created any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights by license, lease or other agreement to use (free the Company and clear of all Liens) the Intellectual Property as are necessary to permit the Seller to conduct its business Subsidiaries and the Seller Company has provided true and complete copies of such assignments to Parent. Neither the Company nor any of its Subsidiaries is not obligated to pay provide any royalty consideration (whether financial or similar fee otherwise) to any Person in connection third party with respect to any exercise of rights by the Seller's use Company or license of any of its Subsidiaries, or any successor to the Intellectual PropertyCompany or any of its Subsidiaries, in any Company IP or Company Software Product. (2h) Section 4.20(h) of the Company Disclosure Schedule contains a true and complete list of all Company Software Products as of the date hereof. (i) Except as set forth in section 5.11(bon Section 4.20(i) of the Company Disclosure LetterSchedule, no Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the Seller has provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such rights of ownership (free and clear of all Liens) of, or such rights by license, lease or other agreement to use (free and clear of all Liens), the computer software programs includingas, without limitation, application software that are the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (“Publicly Available Software”). All Publicly Available Software used by the Seller Company or any Subsidiary has been used in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product. (j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company or its authorized users, or any other associated software, firmware, hardware, computer system or network (including without limitation what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”) (k) Neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person. (i) No funding, facilities or personnel of any Governmental Entity were used, directly or indirectly, to develop or create, in whole or in part, any Company IP, including any Company Software Product and (ii) neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP. (m) The IT Assets operate and perform in all material respects in a manner that permits the Company and its Subsidiaries to the conduct of the Business as currently conducted, as are necessary to permit the conduct of the Business their respective businesses as currently conducted. With respect to the Business, none of the Seller's ownership rights or rights to use any of the computer programs referred to above will be adversely affected by any of the transactions contemplated herebyThe Company and its Subsidiaries have implemented reasonable backup and disaster recovery technology processes.