Intellectual Property; Data Privacy. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a complete and accurate list of all registered Patents, Patent applications, ▇▇▇▇ registrations, ▇▇▇▇ applications, registered Copyrights, Copyright applications and domain name registrations, in each case owned or purported to be owned by the Company or any of its Subsidiaries (“Registered IP”) and any material unregistered Marks owned or purported to be owned by the Company or its Subsidiaries, and specifies, where applicable, the jurisdictions in which each such item of Registered IP has been applied for, issued or registered. The Registered IP is subsisting and unexpired (except as otherwise noted in Section 3.14(a) of the Company Disclosure Schedule), and to the Company’s knowledge, valid and enforceable. The Company or one of its Subsidiaries (i) solely own all right, title, and interest in and to the Registered IP, (ii) own all other material proprietary Intellectual Property purported to be owned by the Company, and (iii) have valid and continuing rights to use and otherwise exploit all other Intellectual Property used, held for use, or practiced by the business as currently conducted and as currently proposed to be conducted (“Company IP”), in each of the foregoing clauses (i)-(ii), free and clear of all Liens (other than Permitted Liens). The Company IP comprises all of the Intellectual Property used or held for use in connection with the operation of the business of the Company and its Subsidiaries as currently conducted and as currently proposed to be conducted. The Company and its Subsidiaries have taken reasonable steps to protect, maintain and enforce their respective rights in their Intellectual Property and confidential information of third persons provided to the Company or any of its Subsidiaries. (b) To the Company’s knowledge, since January 1, 2019, neither the Company nor any of its Subsidiaries is, and the operation of the Company’s and its Subsidiaries’ businesses as currently conducted is not, Infringing the Intellectual Property of any other person in any material respect. Since January 1, 2019, there have not been and are not currently any Claims pending, or to the Company’s knowledge, threatened (including cease-and-desist letters and invitations to take a patent license), or Orders issued by a Governmental Entity, with respect to (i) allegations that the Company or any of its Subsidiaries has Infringed or is Infringing any Intellectual Property of any other person, (ii) challenges to the ownership, validity or enforceability of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries or (iii) restrictions in any material manner of the use, transfer or licensing of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries, except, in each case, as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Since January 1, 2019, to the Company’s knowledge, no third party has Infringed or is Infringing the Intellectual Property owned by the Company or its Subsidiaries in any material respect and, to the knowledge of the Company, no such activity is occurring that has resulted in a material liability to the Company and its Subsidiaries, taken as a whole. (c) Except as would not have or reasonably be expected to have a Material Adverse Effect, the consummation of the Merger will not, under any Material Contract required to be listed on Section 3.10(a)(xii) of the Company Disclosure Schedule, result in (i) the termination of any license of Intellectual Property to the Company or any of its Subsidiaries by a third person or (ii) the granting by the Company or any of its Subsidiaries of any license or rights to any Intellectual Property. (d) Neither the Company nor any of its Subsidiaries is not under any obligation to license any material Intellectual Property to any Governmental Entity because it has received funding to develop such Intellectual Property from a Governmental Entity. Neither the Company nor any Subsidiary is now or has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that would reasonably be expected to require or obligate the Company or any Subsidiary to grant or offer to any other person any license or other right to any material Intellectual Property. (e) Each current and former officer, employee, consultant, independent contractor, or other personnel engaged in the development of any material Intellectual Property or technology for the Company or its Subsidiaries has executed a proprietary information and confidentiality agreement, which, to the extent permitted by Law, assigns ownership of all material Intellectual Property developed or created by such personnel for the Company or its Subsidiaries under the applicable agreement to the Company or its Subsidiaries. In addition, the Company has caused each current and former officer, employee, consultant, independent contractor, or other personnel with access to the trade secrets of the Company or its Subsidiaries to execute a binding confidentiality agreement relating thereto. To the knowledge of the Company, there has not been any breach of any of the foregoing by a party thereto. No trade secrets have been accessed by any person, or has been authorized to be disclosed or has been actually disclosed by the Company or its Subsidiaries to any person other than (A) pursuant to a written confidentiality Contract or other confidentiality obligation restricting the disclosure and use thereof or (B) any such access or disclosure that would not reasonably be expected to have or reasonably be expected to have in a Material Adverse Effect. (f) To the knowledge of the Company, no employee of the Company or any of its Subsidiaries is (A) bound by or otherwise subject to any Contract materially restricting him or her from performing his or her duties, or (B) in material breach of any Contract with any former employer or other person concerning Intellectual Property or confidentiality due to his or her activities as an employee of the Company or its Subsidiaries. (g) None of the software owned by the Company or its Subsidiaries contains, or is distributed with, any software that is licensed pursuant to an open source, copyleft or community source code license or is otherwise subject to the terms of an Open Source License (including any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License, MIT License, Apache License or similar license arrangement or other distribution model; such software collectively referred to as “Open Source Software”) in any manner that requires or conditions the Company’s or any of its Subsidiaries’ use or distribution of such Open Source Software on the disclosure, licensing or distribution of any Intellectual Property owned by the Company and its Subsidiaries (other than modifications to such Open Source Software). To the knowledge of the Company, all Open Source Software distributed by the Company and its Subsidiaries is distributed in material compliance with the applicable Open Source License, except as would not have or reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the software owned by the Company or its Subsidiaries is free of all material defects, errors, or bugs, and does not contain viruses, trap doors, Trojan horses or other corruptants or contaminants that are designed to impair the normal function of IT Assets or result in unauthorized disclosure or access to Personal Data. (h) Neither the Company nor any Subsidiary is a party to any agreement with a third party requiring the deposit of source code of any software owned by the Company or any Subsidiary for the benefit of any third party. No third party other than those who require such access to provide services for or on behalf of the Company or a Subsidiary has any current or contingent access or possession of (or the right to access or possess) such source code, and no such source code will be required to be released (from escrow or otherwise) in connection with the transactions contemplated by this Agreement. (i) The Company and its Subsidiaries are and at all times have been in material compliance with (i) all Privacy Policies, (ii) all Privacy Laws, and the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC to the extent applicable, and (iii) contracts pertaining to Personal Data, data privacy and data security (including those relating to the cross border transfer, access and handling, or processing of any Personal Data) ((i), (ii), and (iii), collectively, the “Data Protection Obligations”). Except as set out in Section 3.14(i) of the Company Disclosure Schedule, there have been no Claims made or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a violation of Personal Data or Data Protection Obligations. (j) The execution, delivery and performance of this Agreement or any of the other agreements, documents or instruments referred to in this Agreement; the consummation of the Merger; or any of the transactions contemplated by this Agreement will not result in any violation of any Privacy Policy of any websites or mobile applications owned by the Company and its Subsidiaries or Data Protection Obligations. (k) To the knowledge of the Company, except as would not have or reasonably be expected to have a Material Adverse Effect, all of the IT Assets are sufficient in all material respects for the current needs of the business of the Company and its Subsidiaries. The IT Assets (i) operate and perform in accordance with their documentation and functional specifications and (ii) since January 1, 2019, there have been no outages of or performance degradation in the IT Assets, in each case, except as would not be or reasonably be expected to be a Material Adverse Effect. (l) The Company and its Subsidiaries use commercially reasonable efforts to protect and maintain the security and operation of Personal Data and their material IT Assets against any, breaches, outages, violations, loss or theft, or accidental, unlawful or unauthorized access to, or use, alteration, destruction, loss, modification, compromise, or other unauthorized disclosure of IT Assets or Personal Data, or other data security incidents (“Security Incident”). Except as set out in Section 3.14(l) of the Company Disclosure Schedule, to the Company’s knowledge, in the past three (3) years, there have been no material Security Incidents, except in each case as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have established, implemented and maintained a written information security program that is commercially reasonable and: (i) includes administrative, technical and physical safeguards to safeguard the security, confidentiality, and integrity of their material IT Assets and Personal Data and (ii) protects against unauthorized access to their material IT Assets and Personal Data. (m) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Intellectual Property; Data Privacy. (a) Section 3.14(a3.13(a) of the Company Disclosure Schedule Schedules sets forth a correct and complete and accurate list of all registered Patents, Patent applications, ▇▇▇▇ registrations, ▇▇▇▇ applications, registered Copyrights, Copyright applications and domain name registrations, in each case owned or purported to be owned by the Company or any of its Subsidiaries (“Registered IP”) and any material unregistered Marks owned or purported to be owned by the Company or its Subsidiaries, and specifiesindicating for each item, where as applicable, the jurisdictions in which each such item of Registered IP has been applied for, issued or registered. The Registered IP is subsisting and unexpired (except as otherwise noted in Section 3.14(a) of the Company Disclosure Schedule), and to the Company’s knowledge, valid and enforceable. The Company or one of its Subsidiaries : (i) solely own all right, title, the name of the applicant/registrant and interest in current legal and to the Registered IP, beneficial owner(s); (ii) own all other material proprietary Intellectual Property purported to be owned by the Companyjurisdiction where the application/registration is located (or, for Internet domain names, the applicable registrar); and (iii) the application or registration number. All registration, maintenance, renewal and annuity fees and required documents to be filed in connection with Company Registered IP have valid and continuing rights been (or will be, prior to use and otherwise exploit all other Intellectual Property usedClosing) timely paid or filed, held for useas the case may be. No Company Registered IP is subject to any outstanding Order adversely affecting the validity or enforceability of, or practiced by the business as currently conducted and as currently proposed to be conducted Group Company’s ownership or use of, or rights in or to, any such Company Registered IP.
(“b) The Group Companies exclusively own all Company IP”), in each of the foregoing clauses (i)-(ii)Intellectual Property, free and clear of all Liens (other than Permitted Liens). The Company IP comprises all .
(c) To the knowledge of the Company, the Group Companies own or have sufficient and valid rights to use all Intellectual Property Rights material to, and used in or held for use in connection with necessary for, the operation conduct of the business of the Company and its Subsidiaries their businesses as currently conducted and as currently proposed planned to be conducted. The Company , and its Subsidiaries have taken reasonable steps all such rights shall survive the consummation of the transactions contemplated by this Agreement, without modification, cancellation, termination, suspension of, or acceleration of any right, obligation or payment with respect to protect, maintain and enforce their respective rights in their any such Intellectual Property and confidential information of third persons provided to the Company or any of its SubsidiariesRights.
(bd) To the Company’s knowledge, since January 1, 2019, neither the Company nor any of its Subsidiaries is, Except as has not resulted in and the operation of the Company’s and its Subsidiaries’ businesses as currently conducted is not, Infringing the Intellectual Property of any other person in any material respect. Since January 1, 2019, there have not been and are not currently any Claims pending, or to the Company’s knowledge, threatened (including cease-and-desist letters and invitations to take a patent license), or Orders issued by a Governmental Entity, with respect to (i) allegations that the Company or any of its Subsidiaries has Infringed or is Infringing any Intellectual Property of any other person, (ii) challenges to the ownership, validity or enforceability of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries or (iii) restrictions in any material manner of the use, transfer or licensing of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries, except, in each case, as would not have or reasonably be expected to haveresult in, individually or in the aggregate, a Material Adverse Effect. Since January 1, 2019material liability to any Group Company, to the knowledge of the Company’s knowledge, no third party the conduct of the business of the Group Companies does not infringe, misappropriate or otherwise violate, and has Infringed not infringed, misappropriated or is Infringing otherwise violated in the past three (3) years, any Intellectual Property owned by Rights of any other Person, whether directly or indirectly. No Group Company has received any written claim, notice, invitation to license or similar communication within the past three (3) years, and there is no Proceeding pending or threatened against any Group Company, (i) alleging any of the foregoing or (ii) contesting or challenging the use, validity, enforceability or ownership of any Company Intellectual Property.
(e) Except as has not been, and would not reasonably be expected to be, individually or its Subsidiaries in the aggregate, material to any material respect andGroup Company, to the knowledge of the Company, no such activity Person is occurring that infringing, misappropriating or otherwise violating, or has resulted infringed, misappropriated or otherwise violated in a material liability the past three (3) years, any Company Intellectual Property, whether directly or indirectly. No Group Company has asserted, or threatened to assert, any Proceeding against any Person regarding any of the Company and its Subsidiaries, taken as a wholeforegoing.
(cf) Except as would not The Group Companies have taken commercially reasonable steps to protect and preserve the confidentiality of all material Trade Secrets that are owned, used or reasonably be expected held for use by the Company. No such Trade Secrets have been made available to have a Material Adverse Effector, to the consummation knowledge of the Merger will notCompany, under discovered by, any Material Contract required Person except pursuant to be listed on Section 3.10(a)(xii) of the Company Disclosure Schedule, result in valid and appropriate confidentiality and non-disclosure obligations requiring any such Person (i) to maintain the termination of any license of Intellectual Property to the Company or any of its Subsidiaries by a third person or confidentiality thereof and (ii) the granting not to use such Trade Secrets except as authorized by the Company or Company, and such obligations have not, to the knowledge of the Company, been breached by any of its Subsidiaries of party thereto in any license or rights to any Intellectual Propertymaterial respect.
(dg) Neither All current employees, consultants, advisors and independent contractors of the Company nor any of its Subsidiaries is not under any obligation Group Companies who have contributed to license any material Intellectual Property to any Governmental Entity because it has received funding to develop such Intellectual Property from a Governmental Entity. Neither the Company nor any Subsidiary is now creation or has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that would reasonably be expected to require or obligate the Company or any Subsidiary to grant or offer to any other person any license or other right to any material Intellectual Property.
(e) Each current and former officer, employee, consultant, independent contractor, or other personnel engaged in the development of any material Intellectual Property Rights for or technology for the on behalf of any Group Company or its Subsidiaries has have executed and delivered to such Group Company a proprietary information written, valid and confidentiality agreement, which, enforceable Contract containing an irrevocable present assignment to the extent permitted by Law, assigns ownership such Group Company of all material such Person’s right, title and interest in any such Intellectual Property developed or created by such personnel for the Company or its Subsidiaries under the applicable agreement to the Company or its Subsidiaries. In addition, the Company has caused each current and former officer, employee, consultant, independent contractor, or other personnel with access to the trade secrets of the Company or its Subsidiaries to execute a binding confidentiality agreement relating theretoRights. To the knowledge of the Company, there has not been any breach no employee, consultant, advisor or independent contractor of any Group Company retains or claims to retain any rights in, nor has any of the foregoing by a party thereto. No trade secrets have been accessed by any personthem filed an application to register, or has been authorized to be disclosed or has been actually disclosed by the Company or its Subsidiaries to any person other than (A) pursuant to a written confidentiality Contract or other confidentiality obligation restricting the disclosure and use thereof or (B) any such access or disclosure that would not reasonably be expected to have or reasonably be expected to have in a Material Adverse EffectIntellectual Property Rights.
(fh) To the knowledge of the Company, no employee of the Company or any of its Subsidiaries is (A) bound by or otherwise subject to any Contract materially restricting him or her from performing his or her duties, or (B) in material breach of any Contract with any former employer or other person concerning Intellectual Property or confidentiality due to his or her activities as an employee of the Company or its Subsidiaries.
(g) None of the software owned by the Company or its Subsidiaries contains, or is distributed with, any software that is licensed pursuant to an open source, copyleft or community source code license or is otherwise subject to the terms of an Open Source License (including any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License, MIT License, Apache License or similar license arrangement or other distribution model; such software collectively referred to as “Open Source Software”) in any manner that requires or conditions the Company’s or any of its Subsidiaries’ use or distribution of such Open Source Software on the disclosure, licensing or distribution of any Intellectual Property owned by the Company and its Subsidiaries (other than modifications to such Open Source Software). To the knowledge of the Company, all Open Source Software distributed by the Company and its Subsidiaries is distributed in material compliance with the applicable Open Source License, except as would not have or reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the software owned by the Company or its Subsidiaries is free of all material defects, errors, or bugs, and does not contain viruses, trap doors, Trojan horses or other corruptants or contaminants that are designed to impair the normal function of IT Assets or result in unauthorized disclosure or access to Personal Data.
(h) Neither the Company nor any Subsidiary is a party to any agreement with a third party requiring the deposit of source code of any software owned by the Company or any Subsidiary for the benefit of any third party. No third party other than those who require such access to provide services for or on behalf of the Company or a Subsidiary has any current or contingent access or possession of (or the right to access or possess) such source code, and no such source code will be required to be released (from escrow or otherwise) in connection with the transactions contemplated by this Agreement.
(i) The Company and its Subsidiaries are and at all times have been in material compliance with (i) all Privacy Policies, (ii) all Privacy Laws, and the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC to the extent applicable, and (iii) contracts pertaining to Personal Data, data privacy and data security (including those relating to the cross border transfer, access and handling, or processing of any Personal Data) ((i), (ii), and (iii), collectively, the “Data Protection Obligations”). Except as set out in Section 3.14(i) of the Company Disclosure Schedule, there have been no Claims made or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a violation of Personal Data or Data Protection Obligations.
(j) The execution, delivery and performance of this Agreement or any of the other agreements, documents or instruments referred to in this Agreement; the consummation of the Merger; or any of the transactions contemplated by this Agreement will not result in any violation of any Privacy Policy of any websites or mobile applications owned by the Company and its Subsidiaries or Data Protection Obligations.
(k) To the knowledge of the Company, except as would not have or reasonably be expected to have a Material Adverse Effect, all of the IT Assets are sufficient in all material respects for the current needs of the business of the Company and its Subsidiaries. The IT Assets (i) operate and perform in all material respects in accordance with their documentation and functional specifications and otherwise as required by the Group Companies in connection with their businesses, (ii) since January 1, 2019, there have been no outages of not materially malfunctioned or performance degradation failed to function in the IT Assetspast three (3) years and (iii) are free from any material disabling codes or instructions, in each casespyware, except as would not be trojan horses, worms, viruses or reasonably be expected to be a Material Adverse Effect.
(l) The Company and its Subsidiaries use commercially reasonable efforts to protect and maintain the security and operation of Personal Data and their material IT Assets against any, breaches, outages, violations, loss other software routines that facilitate or theft, or accidental, unlawful or cause unauthorized access to, or usedisruption, alterationimpairment, destruction, loss, modification, compromisedisablement, or other unauthorized disclosure of IT Assets or Personal Datadestruction of, software, data or other data security incidents (“Security Incident”)materials. Except as set out in Section 3.14(l) To the knowledge of the Company Disclosure Schedule, to the Company’s knowledge, in the past three (3) years, there has been no unauthorized access to or unauthorized use of any Company IT Assets in any material respect. To the knowledge of the Company, the Group Companies have implemented reasonable backup and disaster recovery technology consistent with best industry practices to protect the confidentiality, integrity and security of the Company IT Assets, as applicable.
(i) The Group Companies have complied in all material respects with all Privacy Laws and Company Privacy Commitments and, to the knowledge of the Company, no circumstance has arisen in which Privacy Laws, or any applicable guidance or codes of practice promulgated under Privacy Laws, would require any Group Company to notify a Governmental Entity or any individual of any actual or suspected unauthorized access or use of Personal Information. In the past three (3) years, no Group Company has received any written notice, order, inquiry, investigation, complaint or other communication alleging non-compliance with any Privacy Laws or Company Privacy Commitments.
(j) To the knowledge of the Company, there has been no material Security Incidentsloss, except in each case as would not have theft, misuse of, or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have established, implemented and maintained a written information security program that is commercially reasonable and: (i) includes administrative, technical and physical safeguards to safeguard the security, confidentiality, and integrity of their material IT Assets and Personal Data and (ii) protects against unauthorized access to their material IT Assets and to, use, modification or disclosure of Personal DataInformation Processed by or on behalf of any Group Company.
(m) For purposes of this Agreement:
Appears in 2 contracts
Sources: Convertible Note Purchase Agreement (DiamondHead Holdings Corp.), Convertible Note Purchase Agreement (DiamondHead Holdings Corp.)
Intellectual Property; Data Privacy. (a) Section 3.14(a) of Except as would not have a Company Material Adverse Effect, the Company Disclosure Schedule sets forth a complete and accurate list its Subsidiaries (i) are the sole and exclusive owners of all registered Patents, Patent applications, ▇▇▇▇ registrations, ▇▇▇▇ applications, registered Copyrights, Copyright applications and domain name registrations, in each case Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (the “Registered IPCompany Owned Intellectual Property”) and any material unregistered Marks owned or purported to be owned by the Company or its Subsidiaries, and specifies, where applicable, the jurisdictions in which each such item of Registered IP has been applied for, issued or registered. The Registered IP is subsisting and unexpired (except as otherwise noted in Section 3.14(a) of the Company Disclosure Schedule), and to the Company’s knowledge, valid and enforceable. The Company or one of its Subsidiaries (i) solely own hold all right, title, title and interest in and to the Registered IP, (ii) own all other material proprietary Company Owned Intellectual Property purported to be owned by the Company, and (iii) have valid and continuing rights to use and otherwise exploit all other Intellectual Property used, held for use, or practiced by the business as currently conducted and as currently proposed to be conducted (“Company IP”), in each of the foregoing clauses (i)-(ii), free and clear of all Liens (other than Permitted Liens). The Company IP comprises , and (ii) have (and will continue to have after the Closing Date) a valid and enforceable license to use any and all of the Intellectual Property licensed or sublicensed to, or purported to be licensed or sublicensed to, the Company or any of its Subsidiaries, or otherwise used or held for use in connection with the conduct of the business of the Company or its Subsidiaries as currently conducted, free and clear of any Liens other than Permitted Liens.
(b) No claims are pending or, to the Knowledge of the Company, threatened in writing (i) challenging the ownership, enforceability, scope, validity or use by the Company or any of its Subsidiaries of any Company Owned Intellectual Property or (ii) alleging that the Company or any of its Subsidiaries is infringing, misappropriating, diluting or otherwise violating the Intellectual Property of any Person.
(c) To the Knowledge of the Company, no Person is infringing, misappropriating, diluting or otherwise violating any Company Owned Intellectual Property and the operation of the business of the Company and its Subsidiaries as currently conducted and as currently proposed to be conducted. The Company and its Subsidiaries have taken reasonable steps to protectdoes not infringe, maintain and enforce their respective rights in their Intellectual Property and confidential information of third persons provided to the Company misappropriate, dilute or any of its Subsidiaries.
(b) To the Company’s knowledge, since January 1, 2019, neither the Company nor any of its Subsidiaries isotherwise violate, and the operation of the Company’s business of the Company and its Subsidiaries’ businesses as currently conducted is notSubsidiaries has not infringed, Infringing misappropriated, diluted or otherwise violated, the Intellectual Property of any other person in any material respect. Since January 1, 2019, there have not been and are not currently any Claims pending, or to the Company’s knowledge, threatened (including cease-and-desist letters and invitations to take a patent license), or Orders issued by a Governmental Entity, with respect to (i) allegations that the Company or any of its Subsidiaries has Infringed or is Infringing any Intellectual Property of any other person, (ii) challenges to the ownership, validity or enforceability of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries or (iii) restrictions in any material manner of the use, transfer or licensing of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries, Person except, in each case, as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Since January 1, 2019, to the Company’s knowledge, no third party has Infringed or is Infringing the Intellectual Property owned by the Company or its Subsidiaries in any material respect and, to the knowledge of the Company, no such activity is occurring that has resulted in a material liability to the Company and its Subsidiaries, taken as a whole.
(cd) Except as would not have or reasonably be expected to have a Company Material Adverse Effect, the consummation of the Merger will not(i) all current and former employees, under any Material Contract required to be listed contractors and consultants who have created, invented or otherwise developed Intellectual Property for or on Section 3.10(a)(xii) behalf of the Company Disclosure Scheduleor any of its Subsidiaries have executed Contracts protecting the confidentiality of, result in (i) the termination of any license of Intellectual Property and irrevocably assigning or otherwise transferring to the Company or any of its Subsidiaries by a third person or all rights to, such Intellectual Property and (ii) the granting by the Company no current or any of its Subsidiaries of any license or rights to any Intellectual Property.
(d) Neither the Company nor any of its Subsidiaries is not under any obligation to license any material Intellectual Property to any Governmental Entity because it has received funding to develop such Intellectual Property from a Governmental Entity. Neither the Company nor any Subsidiary is now or has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that would reasonably be expected to require or obligate the Company or any Subsidiary to grant or offer to any other person any license or other right to any material Intellectual Property.
(e) Each current and former officer, employee, consultant, independent contractor, contractor or other personnel engaged in the development of any material Intellectual Property or technology for the Company or its Subsidiaries has executed a proprietary information and confidentiality agreement, which, to the extent permitted by Law, assigns ownership of all material Intellectual Property developed or created by such personnel for the Company or its Subsidiaries under the applicable agreement to the Company or its Subsidiaries. In addition, the Company has caused each current and former officer, employee, consultant, independent contractor, or other personnel with access to the trade secrets of the Company or its Subsidiaries to execute a binding confidentiality agreement relating thereto. To the knowledge of the Company, there has not been any breach of any of the foregoing by a party thereto. No trade secrets have been accessed by any person, or has been authorized to be disclosed or has been actually disclosed by the Company or its Subsidiaries to any person other than (A) pursuant to a written confidentiality Contract or other confidentiality obligation restricting the disclosure and use thereof or (B) any such access or disclosure that would not reasonably be expected to have or reasonably be expected to have in a Material Adverse Effect.
(f) To the knowledge of the Company, no employee consultant of the Company or any of its Subsidiaries is (A) bound by owns any right, title or otherwise subject interest in or to any Contract materially restricting him or her from performing his or her dutiesof the Company Owned Intellectual Property.
(e) The Company and its Subsidiaries have taken reasonable measures to protect the Company Owned Intellectual Property.
(f) The Company is, or (B) and since the Lookback Date has been, in material breach compliance with all Company Privacy Obligations, including (i) all applicable Laws regarding the collection, use and protection of Sensitive Information, (ii) the Company’s privacy policy and (iii) any Contract with contractual provisions governing Sensitive Information. No Actions are pending or threatened against the Company relating to the collection or use of Sensitive Information or alleging any former employer or other person concerning Intellectual Property or confidentiality due to his or her activities as an employee violation of the Company Privacy Obligations.
(g) Since the Lookback Date, (i) none of the Company or its Subsidiaries.
Subsidiaries has experienced a material Sensitive Information Breach; (gii) None the Company and its Subsidiaries have (A) implemented and maintained at least industry standard administrative, technical, organizational and physical safeguards, including the implementation of commercially reasonable data backup, disaster avoidance and recovery procedures and business continuity procedures, designed to protect the privacy, security, confidentiality, integrity and availability of the software owned by the Company or its Subsidiaries containsIT Assets and Sensitive Information from unauthorized processing, or is distributed with, any software that is licensed pursuant to an open source, copyleft or community source code license or is otherwise subject to the terms of an Open Source License (including any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License, MIT License, Apache License or similar license arrangement or other distribution model; such software collectively referred to as “Open Source Software”) in any manner that requires or conditions the Company’s or any of its Subsidiaries’ use or distribution of such Open Source Software on the disclosure, licensing use, access or distribution unlawful destruction, loss or alteration, taking into account the likelihood and severity of any Intellectual Property owned potential harm, the context of use, the risks to and sensitivity of the data and Personal Information processed by the Company and its Subsidiaries Subsidiaries, and (other than modifications B) taken at least industry standard steps designed to such Open Source Software). To the knowledge of the Company, all Open Source Software distributed by ensure that any Person to whom the Company and its Subsidiaries is distributed in material compliance with the applicable Open Source License, except as would not have or reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the software owned by the Company or its Subsidiaries is free of all material defects, errors, or bugs, and does not contain viruses, trap doors, Trojan horses or other corruptants or contaminants that are designed to impair the normal function of IT Assets or result in unauthorized disclosure or granted access to Personal Data.
(h) Neither the Company nor any Subsidiary is a party to any agreement with a third party requiring the deposit of source code of any software owned Sensitive Information collected by the Company or any Subsidiary for the benefit of any third party. No third party other than those who require such access to provide services for or on behalf of the Company and its Subsidiaries has implemented and maintained the same and (iii) the Company has not received any written claims, notices or a Subsidiary has complaints with respect to any current or contingent access or possession of the foregoing.
(or h) None of the right to access or possess) such source IT Assets, include any malicious code, and no program or other internal component (e.g., computer virus, “Trojan horse,” computer worm, computer time bomb or similar component) that is designed to damage, destroy, disable, erase, impede the operation of, allow unauthorized access to or otherwise alter or harm any such source code will be required to be released (from escrow IT Assets or otherwise) in connection with the transactions contemplated by this Agreementpresent a material risk of disclosure of Sensitive Information.
(i) The Except as would not have a Company and its Subsidiaries are and at all times have been in material compliance with (i) all Privacy Policies, (ii) all Privacy Laws, and the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC to the extent applicable, and (iii) contracts pertaining to Personal Data, data privacy and data security (including those relating to the cross border transfer, access and handling, or processing of any Personal Data) ((i), (ii), and (iii), collectivelyMaterial Adverse Effect, the “Data Protection Obligations”). Except as set out in Section 3.14(i) of the Company Disclosure Schedule, there have been no Claims made or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a violation of Personal Data or Data Protection Obligations.
(j) The execution, delivery and performance of this Agreement or any of the other agreements, documents or instruments referred to in this Agreement; and the consummation of the Merger; or Transactions do not violate any Company Privacy Obligations as of the transactions contemplated by this Agreement will not result in any violation of any Privacy Policy of any websites or mobile applications owned by the Company and its Subsidiaries or Data Protection Obligations.
(k) To the knowledge date hereof relating to Sensitive Information as it exists as of the Company, except as would not have or reasonably be expected to have a Material Adverse Effect, all of the IT Assets are sufficient in all material respects for the current needs of the business of the Company and its Subsidiaries. The IT Assets (i) operate and perform in accordance with their documentation and functional specifications and (ii) since January 1, 2019, there have been no outages of or performance degradation in the IT Assets, in each case, except as would not be or reasonably be expected to be a Material Adverse Effectdate hereof.
(l) The Company and its Subsidiaries use commercially reasonable efforts to protect and maintain the security and operation of Personal Data and their material IT Assets against any, breaches, outages, violations, loss or theft, or accidental, unlawful or unauthorized access to, or use, alteration, destruction, loss, modification, compromise, or other unauthorized disclosure of IT Assets or Personal Data, or other data security incidents (“Security Incident”). Except as set out in Section 3.14(l) of the Company Disclosure Schedule, to the Company’s knowledge, in the past three (3) years, there have been no material Security Incidents, except in each case as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have established, implemented and maintained a written information security program that is commercially reasonable and: (i) includes administrative, technical and physical safeguards to safeguard the security, confidentiality, and integrity of their material IT Assets and Personal Data and (ii) protects against unauthorized access to their material IT Assets and Personal Data.
(m) For purposes of this Agreement:
Appears in 2 contracts
Sources: Combination Agreement (Maiden Holdings, Ltd.), Combination Agreement (Maiden Holdings, Ltd.)
Intellectual Property; Data Privacy. (a) Section 3.14(aExcept as would not have a Parent Material Adverse Effect, Parent and its Subsidiaries (i) of are the Company Disclosure Schedule sets forth a complete sole and accurate list exclusive owners of all registered Patents, Patent applications, ▇▇▇▇ registrations, ▇▇▇▇ applications, registered Copyrights, Copyright applications and domain name registrations, in each case Intellectual Property owned or purported to be owned by the Company Parent or any of its Subsidiaries (the “Registered IPParent Owned Intellectual Property”) and any material unregistered Marks owned or purported to be owned by the Company or its Subsidiaries, and specifies, where applicable, the jurisdictions in which each such item of Registered IP has been applied for, issued or registered. The Registered IP is subsisting and unexpired (except as otherwise noted in Section 3.14(a) of the Company Disclosure Schedule), and to the Company’s knowledge, valid and enforceable. The Company or one of its Subsidiaries (i) solely own hold all right, title, title and interest in and to the Registered IP, (ii) own all other material proprietary Parent Owned Intellectual Property purported to be owned by the Company, and (iii) have valid and continuing rights to use and otherwise exploit all other Intellectual Property used, held for use, or practiced by the business as currently conducted and as currently proposed to be conducted (“Company IP”), in each of the foregoing clauses (i)-(ii), free and clear of all Liens (other than Permitted Liens). The Company IP comprises , and (ii) have (and will continue to have after the Closing Date) a valid and enforceable license to use any and all of the Intellectual Property licensed or sublicensed to, or purported to be licensed or sublicensed to, Parent or any of its Subsidiaries, or otherwise used or held for use in connection with the conduct of the business of Parent or its Subsidiaries as currently conducted, free and clear of any Liens other than Permitted Liens.
(b) No claims are pending or, to the Knowledge of Parent, threatened in writing (i) challenging the ownership, enforceability, scope, validity or use by Parent or any of its Subsidiaries of any Parent Owned Intellectual Property or (ii) alleging that Parent or any of its Subsidiaries is infringing, misappropriating, diluting or otherwise violating the Intellectual Property of any Person.
(c) To the Knowledge of Parent, no Person is infringing, misappropriating, diluting or otherwise violating any Parent Owned Intellectual Property and the operation of the business of the Company Parent and its Subsidiaries as currently conducted and as currently proposed to be conducted. The Company and its Subsidiaries have taken reasonable steps to protectdoes not infringe, maintain and enforce their respective rights in their Intellectual Property and confidential information of third persons provided to the Company misappropriate, dilute or any of its Subsidiaries.
(b) To the Company’s knowledge, since January 1, 2019, neither the Company nor any of its Subsidiaries isotherwise violate, and the operation of the Company’s business of Parent and its Subsidiaries’ businesses as currently conducted is notSubsidiaries has not infringed, Infringing misappropriated, diluted or otherwise violated, the Intellectual Property of any other person in any material respect. Since January 1, 2019, there have not been and are not currently any Claims pending, or to the Company’s knowledge, threatened (including cease-and-desist letters and invitations to take a patent license), or Orders issued by a Governmental Entity, with respect to (i) allegations that the Company or any of its Subsidiaries has Infringed or is Infringing any Intellectual Property of any other person, (ii) challenges to the ownership, validity or enforceability of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries or (iii) restrictions in any material manner of the use, transfer or licensing of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its SubsidiariesPerson, except, in each case, as would not have or reasonably be expected material to have, individually or in the aggregate, a Material Adverse Effect. Since January 1, 2019, to the Company’s knowledge, no third party has Infringed or is Infringing the Intellectual Property owned by the Company or its Subsidiaries in any material respect and, to the knowledge of the Company, no such activity is occurring that has resulted in a material liability to the Company Parent and its Subsidiaries, taken as a whole.
(cd) Except as would not have or reasonably be expected to have a Parent Material Adverse Effect, the consummation of the Merger will not, under any Material Contract required to be listed on Section 3.10(a)(xii) of the Company Disclosure Schedule, result in (i) the termination of any license of all current and former employees, contractors and consultants who have created, invented or otherwise developed Intellectual Property to the Company for or on behalf of Parent or any of its Subsidiaries by a third person have executed Contracts protecting the confidentiality of, and irrevocably assigning or (ii) the granting by the Company otherwise transferring to Parent or any of its Subsidiaries all rights to, such Intellectual Property and (ii) no current or former employee, contractor or consultant of any license Parent or rights to any Intellectual Property.
(d) Neither the Company nor any of its Subsidiaries is not under owns any obligation to license any material Intellectual Property right, title or interest in or to any Governmental Entity because it has received funding to develop such Intellectual Property from a Governmental Entity. Neither of the Company nor any Subsidiary is now or has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that would reasonably be expected to require or obligate the Company or any Subsidiary to grant or offer to any other person any license or other right to any material Parent Owned Intellectual Property.
(e) Each current Parent and former officer, employee, consultant, independent contractor, or other personnel engaged in the development of any material Intellectual Property or technology for the Company or its Subsidiaries has executed a proprietary information and confidentiality agreement, which, have taken reasonable measures to protect the extent permitted by Law, assigns ownership of all material Parent Owned Intellectual Property developed or created by such personnel for the Company or its Subsidiaries under the applicable agreement to the Company or its Subsidiaries. In addition, the Company has caused each current and former officer, employee, consultant, independent contractor, or other personnel with access to the trade secrets of the Company or its Subsidiaries to execute a binding confidentiality agreement relating thereto. To the knowledge of the Company, there has not been any breach of any of the foregoing by a party thereto. No trade secrets have been accessed by any person, or has been authorized to be disclosed or has been actually disclosed by the Company or its Subsidiaries to any person other than (A) pursuant to a written confidentiality Contract or other confidentiality obligation restricting the disclosure and use thereof or (B) any such access or disclosure that would not reasonably be expected to have or reasonably be expected to have in a Material Adverse EffectProperty.
(f) To Parent is, and since the knowledge Lookback Date has been, in material compliance with all Parent Privacy Obligations, including (i) all applicable Laws regarding the collection, use and protection of Sensitive Information, (ii) the Company’s privacy policy and (iii) any contractual provisions governing Sensitive Information. No Actions are pending or threatened against the Parent relating to the collection or use of Sensitive Information or alleging any violation of the Company, no employee of the Company or any of its Subsidiaries is (A) bound by or otherwise subject to any Contract materially restricting him or her from performing his or her duties, or (B) in material breach of any Contract with any former employer or other person concerning Intellectual Property or confidentiality due to his or her activities as an employee of the Company or its SubsidiariesParent Privacy Obligations.
(g) None Since the Lookback Date, (i) none of the software owned by the Company Parent or its Subsidiaries contains, or is distributed with, any software that is licensed pursuant to an open source, copyleft or community source code license or is otherwise subject to the terms of an Open Source License has experienced a material Sensitive Information Breach; (including any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License, MIT License, Apache License or similar license arrangement or other distribution model; such software collectively referred to as “Open Source Software”ii) in any manner that requires or conditions the Company’s or any of its Subsidiaries’ use or distribution of such Open Source Software on the disclosure, licensing or distribution of any Intellectual Property owned by the Company Parent and its Subsidiaries have (other than modifications A) implemented and maintained at least industry standard administrative, technical, organizational and physical safeguards, including the implementation of commercially reasonable data backup, disaster avoidance and recovery procedures and business continuity procedures, designed to such Open Source Software). To protect the knowledge privacy, security, confidentiality, integrity and availability of the CompanyIT Assets and Sensitive Information from unauthorized processing, all Open Source Software distributed disclosure, use, access or unlawful destruction, loss or alteration, taking into account the likelihood and severity of any potential harm, the context of use, the risks to and sensitivity of the data and Personal Information processed by the Company Parent and its Subsidiaries, and (B) taken at least industry standard steps designed to ensure that any Person to whom Parent and its Subsidiaries is distributed in material compliance with the applicable Open Source License, except as would not have granted access to Sensitive Information collected by or reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the software owned by the Company or on behalf of Parent and its Subsidiaries is free has implemented and maintained the same and (iii) Parent has not received any written claims, notices or complaints with respect to any of all material defects, errors, or bugs, and does not contain viruses, trap doors, Trojan horses or other corruptants or contaminants that are designed to impair the normal function of IT Assets or result in unauthorized disclosure or access to Personal Dataforegoing.
(h) Neither None of the Company nor IT Assets, include any Subsidiary malicious code, program or other internal component (e.g., computer virus, “Trojan horse,” computer worm, computer time bomb or similar component) that is a party designed to any agreement with a third party requiring damage, destroy, disable, erase, impede the deposit of source code of any software owned by the Company or any Subsidiary for the benefit of any third party. No third party other than those who require such operation of, allow unauthorized access to provide services for or on behalf otherwise alter or harm any such IT Assets or present a material risk of the Company or a Subsidiary has any current or contingent access or possession disclosure of (or the right to access or possess) such source code, and no such source code will be required to be released (from escrow or otherwise) in connection with the transactions contemplated by this AgreementSensitive Information.
(i) The Company and its Subsidiaries are and at all times Except as would not have been in material compliance with (i) all Privacy Policies, (ii) all Privacy Laws, and the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC to the extent applicable, and (iii) contracts pertaining to Personal Data, data privacy and data security (including those relating to the cross border transfer, access and handling, or processing of any Personal Data) ((i), (ii), and (iii), collectivelya Parent Material Adverse Effect, the “Data Protection Obligations”). Except as set out in Section 3.14(i) of the Company Disclosure Schedule, there have been no Claims made or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a violation of Personal Data or Data Protection Obligations.
(j) The execution, delivery and performance of this Agreement or any of the other agreements, documents or instruments referred to in this Agreement; and the consummation of the Merger; or Transactions do not violate any Parent Privacy Obligations as of the transactions contemplated by this Agreement will not result in any violation of any Privacy Policy of any websites or mobile applications owned by the Company and its Subsidiaries or Data Protection Obligations.
(k) To the knowledge date hereof relating to Sensitive Information as it exists as of the Company, except as would not have or reasonably be expected to have a Material Adverse Effect, all of the IT Assets are sufficient in all material respects for the current needs of the business of the Company and its Subsidiaries. The IT Assets (i) operate and perform in accordance with their documentation and functional specifications and (ii) since January 1, 2019, there have been no outages of or performance degradation in the IT Assets, in each case, except as would not be or reasonably be expected to be a Material Adverse Effectdate hereof.
(l) The Company and its Subsidiaries use commercially reasonable efforts to protect and maintain the security and operation of Personal Data and their material IT Assets against any, breaches, outages, violations, loss or theft, or accidental, unlawful or unauthorized access to, or use, alteration, destruction, loss, modification, compromise, or other unauthorized disclosure of IT Assets or Personal Data, or other data security incidents (“Security Incident”). Except as set out in Section 3.14(l) of the Company Disclosure Schedule, to the Company’s knowledge, in the past three (3) years, there have been no material Security Incidents, except in each case as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have established, implemented and maintained a written information security program that is commercially reasonable and: (i) includes administrative, technical and physical safeguards to safeguard the security, confidentiality, and integrity of their material IT Assets and Personal Data and (ii) protects against unauthorized access to their material IT Assets and Personal Data.
(m) For purposes of this Agreement:
Appears in 2 contracts
Sources: Combination Agreement (Maiden Holdings, Ltd.), Combination Agreement (Maiden Holdings, Ltd.)
Intellectual Property; Data Privacy. (a) Section 3.14(a4.15(a) of the Company Disclosure Schedule sets forth a complete Schedules lists all registrations and accurate list applications for registration of Intellectual Property, all domain names, and all registered Patents, Patent applications, ▇▇▇▇ registrations, ▇▇▇▇ applications, registered Copyrights, Copyright applications and domain name registrations, in each case material Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries Group (“Registered IP”) and any material unregistered Marks the foregoing, together with all Intellectual Property owned or purported to be owned by the Company or its Subsidiaries, and specifies, where applicableGroup, the jurisdictions in which each such item of Registered IP has been applied for, issued or registered“Owned Intellectual Property”). The Registered IP All Owned Intellectual Property that is registered with a Governmental Authority is subsisting and unexpired (except as otherwise noted in Section 3.14(a) of the Company Disclosure Schedule), and to the Company’s knowledge, is valid and enforceable. The respective member of the Company or one of its Subsidiaries (i) Group solely own and exclusively owns all right, title, title and interest in and to the Registered IP, (ii) own all other material proprietary its Owned Intellectual Property purported to be owned by the Company, and (iii) have valid and continuing rights to use and otherwise exploit all other Intellectual Property used, held for use, or practiced by the business as currently conducted and as currently proposed to be conducted (“Company IP”), in each of the foregoing clauses (i)-(ii)Property, free and clear of all Liens Encumbrances (other than Permitted LiensEncumbrances). The Company IP comprises Group has the valid rights, pursuant to valid written agreements, to use all Intellectual Property licensed from third parties used in or necessary for the conduct of the operation of the Business in the manner conducted immediately prior to the Closing (the “Licensed Intellectual Property”). The Owned Intellectual Property and the Licensed Intellectual Property constitute all of the Intellectual Property used or practiced in, held for use or practice in or necessary for the operation of the Business in the manner conducted immediately prior to the Closing Date. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result in: (i) the loss or impairment of the Company Group’s right to own or use any Intellectual Property, or (ii) the payment of any additional consideration for the Company Group’s right to own or use any Intellectual Property. All fees have been timely paid and all required communications and responses timely filed with regard to all Owned Intellectual Property subject to registration with a Governmental Authority or other registrar, and the Company Group and each of its Representatives has complied with the duty of candor and disclosure, and have not made any material misrepresentations in connection with the operation prosecution and maintenance of the business any Patents and Patent applications. No grants, funding, facilities, or personnel of the Company and its Subsidiaries as currently conducted and as currently proposed any Governmental Authority or university, research institution or similar entity was used to be conducted. The Company and its Subsidiaries have taken reasonable steps to protect, maintain and enforce their respective rights develop or create (in their whole or in part) any Owned Intellectual Property and confidential information of third persons provided to the Company or any of its SubsidiariesProperty.
(b) To the Company’s knowledge, since January 1, 2019, neither the Company nor any of its Subsidiaries is, and the operation No Patent that is part of the Company’s and its Subsidiaries’ businesses as currently conducted is not, Infringing the Owned Intellectual Property has been the subject of any other person or is now involved in any material respect. Since January 1interference, 2019reissue, there have not been and are not currently any Claims pendingreexamination, or inter partes proceeding or has been challenged in any way (other than normal course proceedings regarding the prosecution of patents); no Patent that is part of the Owned Intellectual Property is subject to any compulsory license, including as related to the Company’s knowledge, threatened (including cease-and-desist letters products or services of the Business; and invitations to take a patent license), or Orders issued by a Governmental Entity, with respect to no Patent that is part of the Owned Intellectual Property (i) allegations that is subject to any obligation to be licensed to third parties as a result of any member of the Company Group’s or any of its Subsidiaries has Infringed Selling Party’s participation in or is Infringing commitment to any Intellectual Property of any standards-setting bodies, industry groups or other person, similar organizations (“Standards Organizations”) or (ii) challenges to the ownershiphas been identified by any Selling Party, validity or enforceability any member of the Registered IP Company Group, or any material unregistered proprietary Intellectual Property owned other Person, as essential to any Standards Organization or any standard promulgated by the any Standards Organization. The Company or its Subsidiaries or (iii) restrictions Group is in any material manner possession of all necessary employment contracts, consultancy contracts, commissioning agreements, development agreements, assignments, lists of developers, prototype versions, development records and other documents necessary to establish ownership of the use, transfer or licensing of the Registered IP or any material unregistered proprietary Owned Intellectual Property owned by the Company or its Subsidiaries, except, in each case, as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Since January 1, 2019, to the Company’s knowledge, no third party has Infringed or is Infringing the Intellectual Property owned by the Company or its Subsidiaries in any material respect and, to the knowledge of the Company, no such activity is occurring that has resulted in a material liability to the Company and its Subsidiaries, taken as a wholeProperty.
(c) Except as would not have or reasonably be expected to have a Material Adverse Effect, the consummation of the Merger will not, under any Material Contract required to be listed on set forth in Section 3.10(a)(xii4.15(c) of the Company Disclosure Schedule, result in Schedules: (i) neither the termination use nor practice of the Intellectual Property, nor the conduct of the Business as of the date hereof and as of the Closing Date, infringes, dilutes, misappropriates or otherwise violates, and has not infringed, diluted, misappropriated or otherwise violated the Intellectual Property of any license of Intellectual Property to the Company or any of its Subsidiaries by a third person or Person; (ii) there is no, and there has been no Proceeding pending, threatened in writing or, otherwise threatened against the granting Company Group, in each case, alleging that any member of the Company Group infringed, diluted, misappropriated or otherwise violated the Intellectual Property of any other Person, and there are no facts or circumstances that would form the basis for any such claim or challenge; and (iii) there are no Proceedings pending or threatened by the Company Group, or by any Person on behalf of its Subsidiaries the Business, against any Person alleging infringement, misappropriation or other violation of any license or rights to any Owned Intellectual Property, and, no Person is, or has been, infringing, misappropriating, diluting or otherwise violating any Owned Intellectual Property, and no member of the Company Group has made any claim or allegations against any Person alleging the foregoing.
(d) Section 4.15(d) of the Disclosure Schedules lists (i) each license, sublicense, consent to use agreement, settlement, coexistence agreement, covenant not to sue, waiver, release, or other express grants of right to use which the Company has granted to any third party with respect to any Owned Intellectual Property (“IP Outbound Licenses”); and (ii) each item of Intellectual Property that any third party owns and that the Company Group uses in connection with the Business pursuant to a license, sublicense, agreement or permission, in each case other than licenses of commercially available off-the-shelf software licensed pursuant to shrink-wrap or click-wrap licenses (“IP Inbound Licenses” and together with the IP Outbound Licenses, the “IP Licenses”). There are no third party consents or other permissions, with respect to any Owned Intellectual Property or IP Inbound Licenses, required for the completion of the transactions contemplated hereby. Neither the use, validity, enforceability nor scope of, nor any member of the Company nor Group’s title or other rights to, any Intellectual Property owned or purported to be owned by the Company Group is currently being, or has been, challenged in any Proceeding or threatened to be challenged in any Proceeding. The Company Group possesses all rights to all Intellectual Property related to the manufacture and sale of the products of the Company Group, and, except as set forth in Section 4.15(c) of the Disclosure Schedules, there are no restrictions on any member of the Company Group regarding the marketability or sale of any of its Subsidiaries is not under any obligation to license any material Intellectual Property to any Governmental Entity because it has received funding to develop such Intellectual Property from a Governmental Entityrespective products. Neither the Company use, validity, enforceability nor any Subsidiary is now or has ever been a member or promoter scope of, nor the title or a contributor to, other rights to any industry standards body Intellectual Property created by or any similar organization that would reasonably be expected to require or obligate for the Company Group as “works made for hire” or that was assigned to the Company Group, or that is or was assigned by any Subsidiary to grant or offer member of the Company Group to any other person of the Company Group’s customers, is the subject of any license current or other right former dispute or Proceeding or is or was otherwise threatened to be challenged in any material Intellectual PropertyProceeding.
(e) Each current The Company Group has (i) taken commercially reasonable measures, consistent with customary practices in the industry in which it operates, to protect the confidentiality of all of its trade secrets (including relating to Software source code) and former all other confidential and proprietary information of the Business including the material trade secrets (including Software source code) and all other proprietary and confidential information of third parties (including Governmental Authorities) that has been provided to the Company (“Company Sensitive Information”) and (ii) executed either written confidentiality and invention assignment agreements or written agreements incorporating confidentiality and invention assignment agreements or provisions with all of its past and present employees, contractors, officers and consultants who have been employed or engaged to develop Intellectual Property for the Business and pursuant to which such employees, contractors and consultants have (A) acknowledged that all such Intellectual Property rights are “works made for hire” for the Company Group under applicable Law and assigned to the applicable member of the Company Group under a present and irrevocable assignment of all their rights in and to all Intellectual Property each individual had developed or created, or assisted in developing or creating, or develops or creates or assists in developing or creating, in the course of their engagement with such member of the Company Group and provided an exclusive, irrevocable, and perpetual license or covenant not to sue in relation to, or waiver of, all such Intellectual Property rights that are non-assignable under the Law, and (B) agreed to hold all trade secrets and all other confidential and proprietary information of the Company Group and of third parties that has been provided to the Company Group in confidence both during and after their employment or engagement. No manager, director, officer, employee, consultant, independent contractoror other representative of any member of the Company Group owns or claims any rights in any Intellectual Property owned, purported to be owned, or used by the Company Group. Except as set forth on Section 4.15(e) of the Disclosure Schedules, (x) no Person has excluded any Intellectual Property from their respective confidentiality and invention assignment agreement, (y) no Person is in breach, in any material respect, of their respective confidentiality and invention assignment agreement, and (z) there has not been any disclosure of or access to any material trade secret or other personnel engaged in confidential and proprietary information of the development Company Group or of any material Intellectual Property or technology for the Company or its Subsidiaries third party that has executed a proprietary information and confidentiality agreement, which, to the extent permitted by Law, assigns ownership of all material Intellectual Property developed or created by such personnel for the Company or its Subsidiaries under the applicable agreement been disclosed to the Company Group and with respect to which the Company Group is bound by obligations of confidentiality to any Person in a manner that has resulted or its Subsidiariesis reasonably likely to result in the loss of trade secret in and to such information or that did, will, or is expected to cause a Material Adverse Effect on any member of the Company Group or the Buyer.
(f) The Company Group has not made any Company Sensitive Information, available to any Person except with proper authorization and pursuant to written confidentiality agreements or as required by the requirements of a Government Contract or applicable Law. In additionAll use, disclosure or appropriation of any trade secret or other confidential or proprietary information not owned by the Company Group that had been provided to any member of the Company Group has been used pursuant to the terms of a written agreement between a member of the Company Group and the owner of such trade secret or confidential or proprietary information, or is otherwise lawful. No member of the Company Group has received any notice from any Person that there has been an unauthorized use or disclosure of any Company Sensitive Information. No Person that has received any Company Sensitive Information from the Company has caused each current and former officer, employee, consultant, independent contractor, or other personnel with access refused to the trade secrets of the Company or its Subsidiaries provide to execute a binding confidentiality agreement relating thereto. To the knowledge of the Company, there after the Company’s request therefore, a certificate of return or destruction of any documents or materials containing such Company Sensitive Information. There has not been any breach of any of the foregoing by a party thereto. No trade secrets have been accessed by any personconfidentiality obligations with respect to, or has been authorized to be disclosed or has been actually disclosed by the Company or its Subsidiaries to any person other than (A) pursuant to a written confidentiality Contract or other confidentiality obligation restricting the disclosure and unauthorized use thereof or (B) any such access or disclosure that would not reasonably be expected to have or reasonably be expected to have in a Material Adverse Effectof, any Company Sensitive Information.
(fg) To The Company Group has been and is in actual possession of or has sufficient control and rights over, and has complete, valid and enforceable rights to use without restriction, all data, data sets and databases used in, held for use in, or necessary for the knowledge conduct of the CompanyCompany Group’s business (collectively, “Company Owned Data and Data Sets”). No item or portion of the Company Owned Data and Data Sets has been taken or scraped from the Internet or any other source without valid consent, authorization, or the valid and enforceable provision to the Company Group of sufficient rights.
(h) The Company Group has at all times complied with all Privacy Requirements. The Company Group has in place publicly published privacy policies regarding the Processing of Personal Information in its possession, custody or control, or otherwise held or processed on its behalf. None of the Company Group’s privacy policies, notices or terms of use have contained any material omissions or misleading or deceptive information. The Company Group has not received any written notice (including written notice from third parties acting on its behalf) of any Proceeding alleging a violation of any Privacy Requirements, nor has any such claim been threatened. The Company Group has implemented commercially reasonable measures designed to protect and maintain the confidentiality of all Personal Information and all other Company Sensitive Information collected by or on behalf of the Company Group or otherwise provided to the Company Group in connection with the Business and to maintain the security of their data storage practices for Personal Information in accordance with Privacy Requirements and consistent with commercially reasonable industry standard practices for the types of data Processed by Company Group. The Company Group has been, and is, in compliance with all applicable Laws (including Privacy Laws) and contractual obligations with respect to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical, physical and administrative), disposal, destruction, disclosure, or transfer (including cross-border) of Personal Information and, in each case consistent with commercially reasonable industry practices applicable to such types of data. The Company has not been notified of any complaint, Proceeding, investigation (formal or informal), by any private party, data protection authority, or any Governmental Authority, with respect to the collection, use, retention, disclosure, transfer, storage, security, disposal or other processing of Personal Information or any other claim related to data security or privacy or alleging a violation of any of its privacy policies, or any Privacy Law, nor has any such claim been threatened. The Company has taken commercially reasonable steps to ensure that all third party service providers, outsourcers, contractors, or other persons who process, store or otherwise handle Personal Information for or on behalf of the Company have agreed to comply with applicable Privacy Laws including providing any required notice and obtaining any consents required and have taken commercially reasonable steps to protect and secure Personal Information from loss, theft, misuse or unauthorized access, use, modification or disclosure. There has been no employee unauthorized access, use, or disclosure of Personal Information or other sensitive data in the possession or control of the Company or any of its Subsidiaries is (A) bound by providers or other contractors, or otherwise subject to any Contract materially restricting him or her from performing his or her duties, or (B) in material breach of any Contract connection with any former employer or other person concerning Intellectual Property or confidentiality due to his or her activities as an employee of the Company or its SubsidiariesBusiness.
(gi) None of the software owned by the The Company or its Subsidiaries containsGroup has taken commercially reasonable steps to ensure that all third party service providers, outsourcers, contractors, or is distributed withother persons who Process, any software that is licensed pursuant to an open source, copyleft store or community source code license or is otherwise subject to the terms of an Open Source License (including any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License, MIT License, Apache License or similar license arrangement or other distribution model; such software collectively referred to as “Open Source Software”) in any manner that requires or conditions the Company’s or any of its Subsidiaries’ use or distribution of such Open Source Software on the disclosure, licensing or distribution of any Intellectual Property owned by the Company and its Subsidiaries (other than modifications to such Open Source Software). To the knowledge of the Company, all Open Source Software distributed by the Company and its Subsidiaries is distributed in material compliance with the applicable Open Source License, except as would not have or reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the software owned by the Company or its Subsidiaries is free of all material defects, errors, or bugs, and does not contain viruses, trap doors, Trojan horses or other corruptants or contaminants that are designed to impair the normal function of IT Assets or result in unauthorized disclosure or access to handle Personal Data.
(h) Neither the Company nor any Subsidiary is a party to any agreement with a third party requiring the deposit of source code of any software owned by the Company or any Subsidiary for the benefit of any third party. No third party other than those who require such access to provide services Information for or on behalf of the Company Group have agreed to materially comply with applicable Privacy Requirements and taken reasonable steps to protect and secure Personal Information from loss, theft, misuse or a Subsidiary has unauthorized access, use, modification or disclosure. There have been no material Information Security Incidents, misuse of or unauthorized access to or disclosure of any current Personal Information in the possession or contingent access control of the Company Group or possession collected, used or processed on behalf of (or the right to access or possess) such source codeCompany Group, and no such source code will be member of the Company Group has provided or been legally required to be released (from escrow or otherwise) provide any notice to any Person in connection with the transactions contemplated by this Agreement.
(i) The Company and its Subsidiaries are and at all times have been in material compliance with (i) all Privacy Policies, (ii) all Privacy Laws, and the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC to the extent applicable, and (iii) contracts pertaining to Personal Data, data privacy and data security (including those relating to the cross border transfer, access and handling, or processing of any Personal Data) ((i), (ii), and (iii), collectively, the “Data Protection Obligations”). Except as set out in Section 3.14(i) of the Company Disclosure Schedule, there have been no Claims made or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a violation disclosure of Personal Data or Data Protection ObligationsInformation.
(j) The execution, delivery and performance of this Agreement or any of the other agreements, documents or instruments referred to in this Agreement; the consummation of the Merger; or any of the transactions contemplated by this Agreement will not result in any violation of any Privacy Policy of any websites or mobile applications owned by the Company and its Subsidiaries or Data Protection Obligations.
(k) To the knowledge of the Company, except as would not have or reasonably be expected to have a Material Adverse Effect, all All of the IT Assets Systems are sufficient in all material respects for the current needs of the business owned by, or licensed, leased or supplied under a valid, enforceable and subsisting written contract to a member of the Company Group, and its Subsidiaries. The IT Assets (i) operate include all hardware and perform software components and design features and protections that are required to carry on the Business as it was carried out in accordance with their documentation and functional specifications and the twelve (12) months prior to the date hereof; (ii) since January 1are in good working condition, 2019ordinary wear and tear excepted, there have been no outages of or performance degradation in to effectively perform all computing, information technology, and data processing operations necessary for the IT Assets, in each case, except as would not be or reasonably be expected to be a Material Adverse Effect.
(l) The Company and its Subsidiaries use commercially reasonable efforts to protect and maintain the security and operation of Personal Data and their material IT Assets against any, breaches, outages, violations, loss or theft, or accidental, unlawful or unauthorized access to, or use, alteration, destruction, loss, modification, compromise, or other unauthorized disclosure of IT Assets or Personal Data, or other data security incidents (“Security Incident”). Except as set out in Section 3.14(l) conduct of the Company Disclosure ScheduleBusiness; (iii) are free of any “back door” functionality, to the Company’s knowledgematerial viruses, in the past three (3) yearsdefects, there have been no material Security Incidents, except in each case as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have established, implemented and maintained a written information security program that is commercially reasonable and: (i) includes administrative, technical and physical safeguards to safeguard the security, confidentialitybugs, and integrity of their material IT Assets and Personal Data and (ii) protects against unauthorized access to their material IT Assets and Personal Data.
(m) For purposes of this Agreement:er
Appears in 1 contract
Sources: Stock Purchase Agreement (EnerSys)
Intellectual Property; Data Privacy. (a) Section 3.14(a4.13(a) of the Company Disclosure Schedule Schedules sets forth a correct and complete and accurate list of all registered Patents, Patent applications, ▇▇▇▇ registrations, ▇▇▇▇ applications, registered Copyrights, Copyright applications and domain name registrations, in each case owned or purported to be owned by the Company or any of its Subsidiaries (“Registered IP”) and any material unregistered Marks owned or purported to be owned by the Company or its Subsidiaries, and specifiesindicating for each item, where as applicable, the jurisdictions in which each such item of Registered IP has been applied for, issued or registered. The Registered IP is subsisting and unexpired (except as otherwise noted in Section 3.14(a) of the Company Disclosure Schedule), and to the Company’s knowledge, valid and enforceable. The Company or one of its Subsidiaries : (i) solely own all right, title, the name of the applicant/registrant and interest in current legal and to the Registered IP, beneficial owner(s); (ii) own all other material proprietary Intellectual Property purported to be owned by the Companyjurisdiction where the application/registration is located (or, for Internet domain names, the applicable registrar); and (iii) the application or registration number. All registration, maintenance, renewal and annuity fees and required documents to be filed in connection with Company Registered IP have valid and continuing rights been (or will be, prior to use and otherwise exploit all other Intellectual Property usedClosing) timely paid or filed, held for useas the case may be. No Company Registered IP is subject to any outstanding Order adversely affecting the validity or enforceability of, or practiced by the business as currently conducted and as currently proposed to be conducted Group Company’s ownership or use of, or rights in or to, any such Company Registered IP.
(“b) The Group Companies exclusively own all Company IP”), in each of the foregoing clauses (i)-(ii)Intellectual Property, free and clear of all Liens (other than Permitted Liens). The Company IP comprises all .
(c) To the knowledge of the Company, the Group Companies own or have sufficient and valid rights to use all Intellectual Property Rights material to, and used in or held for use in connection with necessary for, the operation conduct of the business of the Company and its Subsidiaries their businesses as currently conducted and as currently proposed planned to be conducted. The Company and its Subsidiaries have taken reasonable steps , all of which rights shall survive the consummation of the transactions contemplated by this Agreement, without modification, cancellation, termination, suspension of, or acceleration of any right, obligation or payment with respect to protect, maintain and enforce their respective rights in their any such Intellectual Property and confidential information of third persons provided to the Company or any of its SubsidiariesRights.
(bd) To the Company’s knowledge, since January 1, 2019, neither the Company nor any of its Subsidiaries is, Except as has not resulted in and the operation of the Company’s and its Subsidiaries’ businesses as currently conducted is not, Infringing the Intellectual Property of any other person in any material respect. Since January 1, 2019, there have not been and are not currently any Claims pending, or to the Company’s knowledge, threatened (including cease-and-desist letters and invitations to take a patent license), or Orders issued by a Governmental Entity, with respect to (i) allegations that the Company or any of its Subsidiaries has Infringed or is Infringing any Intellectual Property of any other person, (ii) challenges to the ownership, validity or enforceability of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries or (iii) restrictions in any material manner of the use, transfer or licensing of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiaries, except, in each case, as would not have or reasonably be expected to haveresult in, individually or in the aggregate, a Material Adverse Effect. Since January 1, 2019material liability to any Group Company, to the knowledge of the Company’s knowledge, no third party the conduct of the business of the Group Companies does not infringe, misappropriate or otherwise violate, and has Infringed not infringed, misappropriated or is Infringing otherwise violated in the past three (3) years, any Intellectual Property owned by Rights of any other Person, whether directly or indirectly. No Group Company has received any written claim, notice, invitation to license or similar communication within the past three (3) years, and there is no Proceeding pending or threatened against any Group Company, (i) alleging any of the foregoing or (ii) contesting or challenging the use, validity, enforceability or ownership of any Company Intellectual Property.
(e) Except as has not been, and would not reasonably be expected to be, individually or its Subsidiaries in the aggregate, material to any material respect andGroup Company, to the knowledge of the Company, no such activity Person is occurring that infringing, misappropriating or otherwise violating, or has resulted infringed, misappropriated or otherwise violated in a material liability the past three (3) years, any Company Intellectual Property, whether directly or indirectly. No Group Company has asserted, or threatened to assert, any Proceeding against any Person regarding any of the Company and its Subsidiaries, taken as a wholeforegoing.
(cf) Except as would not The Group Companies have taken commercially reasonable steps to protect and preserve the confidentiality of all material Trade Secrets that are owned, used or reasonably be expected held for use by the Company. No such Trade Secrets have been made available to have a Material Adverse Effector, to the consummation knowledge of the Merger will notCompany, under discovered by, any Material Contract required Person except pursuant to be listed on Section 3.10(a)(xii) of the Company Disclosure Schedule, result in valid and appropriate confidentiality and non-disclosure obligations requiring any such Person (i) to maintain the termination of any license of Intellectual Property to the Company or any of its Subsidiaries by a third person or confidentiality thereof and (ii) the granting not to use such Trade Secrets except as authorized by the Company or Company, and such obligations have not, to the knowledge of the Company, been breached by any of its Subsidiaries of party thereto in any license or rights to any Intellectual Propertymaterial respect.
(dg) Neither All current employees, consultants, advisors and independent contractors of the Company nor any of its Subsidiaries is not under any obligation Group Companies who have contributed to license any material Intellectual Property to any Governmental Entity because it has received funding to develop such Intellectual Property from a Governmental Entity. Neither the Company nor any Subsidiary is now creation or has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that would reasonably be expected to require or obligate the Company or any Subsidiary to grant or offer to any other person any license or other right to any material Intellectual Property.
(e) Each current and former officer, employee, consultant, independent contractor, or other personnel engaged in the development of any material Intellectual Property Rights for or technology for the on behalf of any Group Company or its Subsidiaries has have executed and delivered to such Group Company a proprietary information written, valid and confidentiality agreement, which, enforceable Contract containing an irrevocable present assignment to the extent permitted by Law, assigns ownership such Group Company of all material such Person’s right, title and interest in any such Intellectual Property developed or created by such personnel for the Company or its Subsidiaries under the applicable agreement to the Company or its Subsidiaries. In addition, the Company has caused each current and former officer, employee, consultant, independent contractor, or other personnel with access to the trade secrets of the Company or its Subsidiaries to execute a binding confidentiality agreement relating theretoRights. To the knowledge of the Company, there has not been any breach no employee, consultant, advisor or independent contractor of any Group Company retains or claims to retain any rights in, nor has any of the foregoing by a party thereto. No trade secrets have been accessed by any personthem filed an application to register, or has been authorized to be disclosed or has been actually disclosed by the Company or its Subsidiaries to any person other than (A) pursuant to a written confidentiality Contract or other confidentiality obligation restricting the disclosure and use thereof or (B) any such access or disclosure that would not reasonably be expected to have or reasonably be expected to have in a Material Adverse EffectIntellectual Property Rights.
(fh) To the knowledge of the Company, no employee of the Company or any of its Subsidiaries is (A) bound by or otherwise subject to any Contract materially restricting him or her from performing his or her duties, or (B) in material breach of any Contract with any former employer or other person concerning Intellectual Property or confidentiality due to his or her activities as an employee of the Company or its Subsidiaries.
(g) None of the software owned by the Company or its Subsidiaries contains, or is distributed with, any software that is licensed pursuant to an open source, copyleft or community source code license or is otherwise subject to the terms of an Open Source License (including any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License, MIT License, Apache License or similar license arrangement or other distribution model; such software collectively referred to as “Open Source Software”) in any manner that requires or conditions the Company’s or any of its Subsidiaries’ use or distribution of such Open Source Software on the disclosure, licensing or distribution of any Intellectual Property owned by the Company and its Subsidiaries (other than modifications to such Open Source Software). To the knowledge of the Company, all Open Source Software distributed by the Company and its Subsidiaries is distributed in material compliance with the applicable Open Source License, except as would not have or reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the software owned by the Company or its Subsidiaries is free of all material defects, errors, or bugs, and does not contain viruses, trap doors, Trojan horses or other corruptants or contaminants that are designed to impair the normal function of IT Assets or result in unauthorized disclosure or access to Personal Data.
(h) Neither the Company nor any Subsidiary is a party to any agreement with a third party requiring the deposit of source code of any software owned by the Company or any Subsidiary for the benefit of any third party. No third party other than those who require such access to provide services for or on behalf of the Company or a Subsidiary has any current or contingent access or possession of (or the right to access or possess) such source code, and no such source code will be required to be released (from escrow or otherwise) in connection with the transactions contemplated by this Agreement.
(i) The Company and its Subsidiaries are and at all times have been in material compliance with (i) all Privacy Policies, (ii) all Privacy Laws, and the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC to the extent applicable, and (iii) contracts pertaining to Personal Data, data privacy and data security (including those relating to the cross border transfer, access and handling, or processing of any Personal Data) ((i), (ii), and (iii), collectively, the “Data Protection Obligations”). Except as set out in Section 3.14(i) of the Company Disclosure Schedule, there have been no Claims made or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a violation of Personal Data or Data Protection Obligations.
(j) The execution, delivery and performance of this Agreement or any of the other agreements, documents or instruments referred to in this Agreement; the consummation of the Merger; or any of the transactions contemplated by this Agreement will not result in any violation of any Privacy Policy of any websites or mobile applications owned by the Company and its Subsidiaries or Data Protection Obligations.
(k) To the knowledge of the Company, except as would not have or reasonably be expected to have a Material Adverse Effect, all of the IT Assets are sufficient in all material respects for the current needs of the business of the Company and its Subsidiaries. The IT Assets (i) operate and perform in all material respects in accordance with their documentation and functional specifications and otherwise as required by the Group Companies in connection with their businesses, (ii) since January 1, 2019, there have been no outages of not materially malfunctioned or performance degradation failed to function in the IT Assetspast three (3) years and (iii) are free from any material disabling codes or instructions, in each casespyware, except as would not be Trojan horses, worms, viruses or reasonably be expected to be a Material Adverse Effect.
(l) The Company and its Subsidiaries use commercially reasonable efforts to protect and maintain the security and operation of Personal Data and their material IT Assets against any, breaches, outages, violations, loss other software routines that facilitate or theft, or accidental, unlawful or cause unauthorized access to, or usedisruption, alterationimpairment, destruction, loss, modification, compromisedisablement, or other unauthorized disclosure of IT Assets or Personal Datadestruction of, software, data or other data security incidents (“Security Incident”)materials. Except as set out in Section 3.14(l) To the knowledge of the Company Disclosure Schedule, to the Company’s knowledge, in the past three (3) years, there has been no unauthorized access to or unauthorized use of any Company IT Assets in any material respect. To the knowledge of the Company, the Group Companies have implemented reasonable backup and disaster recovery technology consistent with best industry practices to protect the confidentiality, integrity and security of the Company IT Assets, as applicable.
(i) The Group Companies have complied in all material respects with all Privacy Laws and Company Privacy Commitments and, to the knowledge of the Company, no circumstance has arisen in which Privacy Laws, or any applicable guidance or codes of practice promulgated under Privacy Laws, would require any Group Company to notify a Governmental Entity or any individual of any actual or suspected unauthorized access or use of Personal Information. In the past three (3) years, no Group Company has received any written notice, order, inquiry, investigation, complaint or other communication alleging non-compliance with any Privacy Laws or Company Privacy Commitments.
(j) To the knowledge of the Company, there has been no material Security Incidentsloss, except in each case as would not have theft, misuse of, or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have established, implemented and maintained a written information security program that is commercially reasonable and: (i) includes administrative, technical and physical safeguards to safeguard the security, confidentiality, and integrity of their material IT Assets and Personal Data and (ii) protects against unauthorized access to their material IT Assets and to, use, modification or disclosure of Personal DataInformation Processed by or on behalf of any Group Company.
(m) For purposes of this Agreement:
Appears in 1 contract
Sources: Business Combination Agreement (DiamondHead Holdings Corp.)
Intellectual Property; Data Privacy. (a) Section 3.14(a5.11(a) of the Company Seller Disclosure Schedule sets forth contains a complete true and accurate correct list as of the date hereof of all Intellectual Property that has issued or is registered Patentsor is subject to an application for issuance or registration that is included in the Transferred Owned Intellectual Property (collectively, Patent applicationsthe “Owned Registered Intellectual Property”). For each such item of Intellectual Property, ▇▇▇▇ registrations, ▇▇▇▇ applications, registered Copyrights, Copyright applications and domain name registrations, in each case owned or purported to be owned by Section 5.11(a) of the Company or any of its Subsidiaries (“Registered IP”) and any material unregistered Marks owned or purported to be owned by the Company or its Subsidiaries, and specifiesSeller Disclosure Schedule includes, where applicable, as of the jurisdictions in which each such item of Registered IP has been applied fordate hereof (i) the current owner (including, with respect to Internet domain names and the current registrant), (ii) the jurisdiction where the application, registration or issuance is filed, (iii) the application, registration and issue number and (iv) the application, registration or issue date.
(b) The issued or registered. The Registered IP is subsisting and unexpired (except as otherwise noted registered Intellectual Property required to be disclosed in Section 3.14(a5.11(a) of the Company Seller Disclosure Schedule)Schedule is subsisting, and and, to the Company’s knowledgeKnowledge of Seller, valid and enforceable. The Company or one of its Subsidiaries Prior to the Reorganization, (i) solely Seller, BSAI or an Acquired Company, as applicable, exclusively own all right, titleTransferred Owned Intellectual Property, and interest in and to the Registered IP, (ii) own all other material proprietary Intellectual Property purported to be owned by the Company, and (iii) have valid and continuing rights to use and otherwise exploit all other Intellectual Property primarily used, practiced or held for use, use or practiced by practice in the business as currently conducted and as currently proposed to be conducted Business (the “Company Licensed Business IP”)) is validly licensed to Seller, BSAI or an Acquired Company, in each case of the foregoing clauses (i)-(iii) and (ii), free and clear of all Liens (other than Liens, except for Permitted Liens). Immediately following the Closing, an Acquired Company will be the sole and exclusive owner of all Transferred Owned Intellectual Property, in each case, to the same extent as such rights were held by Seller, BSAI or an Acquired Company immediately prior to the Closing. Each of Seller, BSAI and their respective Affiliates (including each of the Acquired Companies) have taken commercially reasonable actions necessary to maintain the confidentiality of all material Trade Secrets used in the Business. The Company (x) Transferred Owned Intellectual Property; (y) Licensed Business IP comprises licensed under a Transferred Contract; and (z) Intellectual Property the benefit of which is provided to the Acquired Companies under the Transition Services Agreement constitute all of the Intellectual Property used that is necessary and sufficient for the conduct and operation of the Business as currently conducted in all material respects, except for any Intellectual Property, including third-party software and other services, that Seller and Buyer agree in writing is specifically excluded from provision under the Transition Services Agreement and as to which such parties agree Seller is not required to provide any substitute or held for use in connection with replacement.
(c) To the Knowledge of Seller, the operation of the business of the Company and its Subsidiaries as currently conducted and as currently proposed to be conducted. The Company and its Subsidiaries have taken reasonable steps to protect, maintain and enforce their respective rights in their Intellectual Property and confidential information of third persons provided to the Company or any of its Subsidiaries.
(b) To the Company’s knowledgeBusiness has not, since January 1, 20192018, neither the Company nor any of its Subsidiaries isinfringed, misappropriated, diluted or otherwise violated, and the operation of the Company’s and its Subsidiaries’ businesses as currently conducted is notdoes not infringe, Infringing the Intellectual Property of any other person in any material respect. Since January 1misappropriate, 2019dilute or violate, there have not been and are not currently any Claims pending, or to the Company’s knowledge, threatened (including cease-and-desist letters and invitations to take a patent license), or Orders issued by a Governmental Entity, with respect to (i) allegations that the Company or any of its Subsidiaries has Infringed or is Infringing any Intellectual Property of any other person, (ii) challenges Third Party in any manner that would be material and adverse to the Business, taken as a whole. To the Knowledge of Seller, since January 1, 2018, no Person has been or is engaging in any activity that infringes, misappropriates, dilutes or violates any of the Transferred Owned Intellectual Property, except for any such infringements, misappropriations, dilutions or violations that do not materially impair the ability of Seller, BSAI or any Acquired Company to operate the Business as conducted on the date of this Agreement. None of Seller, BSAI or any of their respective Affiliates (including any of the Acquired Companies) has received any written claim or notice from any Person since January 1, 2018 through the date hereof (i) challenging the ownership, use, validity or enforceability of any Transferred Owned Intellectual Property or (ii) alleging that the Registered IP operation of the Business by any of Seller, BSAI or any material unregistered proprietary of their respective Affiliates (including any of the Acquired Companies) infringes, misappropriates, dilutes or otherwise violates any Intellectual Property owned by the Company or its Subsidiaries or (iii) restrictions of any Third Party in any material manner of the usewhich, transfer if proven or licensing of the Registered IP or any material unregistered proprietary Intellectual Property owned by the Company or its Subsidiariesestablished, except, in each case, as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Since January 1, 2019, be material and adverse to the Company’s knowledge, no third party has Infringed or is Infringing the Intellectual Property owned by the Company or its Subsidiaries in any material respect and, to the knowledge of the Company, no such activity is occurring that has resulted in a material liability to the Company and its SubsidiariesBusiness, taken as a whole.
(cd) Except as would not have or reasonably be expected to have a Material Adverse Effect, the consummation As of the Merger will notdate of this Agreement, under any Material Contract required there is no pending Action with respect to be listed on Section 3.10(a)(xii) of the Company Disclosure Schedulewhich Seller, result in (i) the termination of any license of Intellectual Property to the Company BSAI or any of its Subsidiaries by a third person their respective Affiliates (including any of the Acquired Companies) has been served with written notice, or, to the Knowledge of Seller, any other Action pending or (ii) the granting by the Company threatened against Seller, BSAI or any of its Subsidiaries their respective Affiliates (including any of the Acquired Companies), in any case, alleging that the operation of the Business since January 1, 2018 infringes, misappropriates, dilutes or violates the Intellectual Property of any license or rights to any Intellectual Property.
(d) Neither the Company nor any of its Subsidiaries is not under any obligation to license any material Intellectual Property to any Governmental Entity because it has received funding to develop such Intellectual Property from a Governmental Entity. Neither the Company nor any Subsidiary is now or has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that would reasonably be expected to require or obligate the Company or any Subsidiary to grant or offer to any other person any license or other right to any material Intellectual PropertyThird Party.
(e) Each current of Seller, BSAI and former officertheir respective Subsidiaries (including each of the Acquired Companies), employee, consultant, independent contractor, or other personnel engaged in the development of any material Intellectual Property or technology for the Company or its Subsidiaries has executed a proprietary information and confidentiality agreement, which, to the extent permitted by Lawrelated to the Business, assigns ownership takes and has taken commercially reasonable steps to maintain and protect, in all material respects, the performance, integrity and security of the IT Systems (and the performance, integrity, security, and confidentiality of all material Intellectual Property developed Software, information and data stored or created by such personnel contained therein or transmitted thereby). The IT Systems included in the Transferred Assets are adequate and sufficient (including with respect to working condition and capacity) for the Company or its Subsidiaries under the applicable agreement to the Company or its Subsidiaries. In addition, the Company has caused each current and former officer, employee, consultant, independent contractor, or other personnel with access to the trade secrets operation of the Company or its Subsidiaries to execute a binding confidentiality agreement relating theretoBusiness. To the knowledge Knowledge of the CompanySeller, there has not have been any breach no (i) material security breaches or unauthorized use, access or intrusions of any of the foregoing by a party thereto. No trade secrets have been accessed by any person, or has been authorized to be disclosed or has been actually disclosed by the Company or its Subsidiaries to any person other than (A) pursuant to a written confidentiality Contract or other confidentiality obligation restricting the disclosure and use thereof IT Systems or (Bii) outages of any such access IT Systems that have caused or disclosure that resulted in a material disruption to the Business. In each case, except as would not not, individually or in the aggregate, reasonably be expected to be material and adverse to the Business, there have been no breaches, security incidents, misuse of or reasonably be expected unauthorized access to have or disclosure of any Personal Information in the possession or control of Seller, BSAI or their respective Subsidiaries (to the extent related to the Business) or any of the Acquired Companies or collected, used or processed by or on behalf of Seller, BSAI and their respective Subsidiaries (to the extent related to the Business) or any of the Acquired Companies and none of Seller, BSAI or their respective Subsidiaries (to the extent related to the Business) nor any of the Acquired Companies has provided or been legally required to provide any notices to any Person in connection with a Material Adverse Effectdisclosure of Personal Information.
(f) To Since January 1, 2018, except as would not, individually or in the knowledge aggregate, reasonably be expected to be material and adverse to the Business, taken as a whole, each of Seller, BSAI and their respective Subsidiaries (to the Companyextent related to the Business) and the Acquired Companies have at all times complied with (i) all applicable Privacy Laws, no employee (ii) all policies and notices regarding Personal Information of Seller, BSAI and their respective Subsidiaries (to the Company extent related to the Business) and the Acquired Companies, and (iii) all contractual obligations of Seller, BSAI and their respective Subsidiaries (to the extent related to the Business) and the Acquired Companies with respect to Personal Information. Each of Seller, BSAI and their respective Subsidiaries (to the extent related to the Business) and the Acquired Companies have (A) implemented and, since January 1, 2018, maintained commercially reasonable technical and organizational safeguards to protect, in all material respects, Personal Information and other confidential data in their possession or under their control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure, and (B) taken commercially reasonable steps to ensure that any third party with access to Personal Information collected by or on behalf of Seller, BSAI and their respective Subsidiaries (to the extent related to the Business) or any of its the Acquired Companies has implemented and maintained the same. None of Seller, BSAI or their respective Subsidiaries is (Ato the extent related to the Business) bound by or otherwise subject to any Contract materially restricting him or her from performing his or her dutiesof the Acquired Companies has been charged with, or (B) in material breach received any written notice of any Contract claims of, or investigations or inquires related to, the violation of any Privacy Laws, applicable privacy policies, or contractual commitments with respect to Personal Information in any former employer or other person concerning Intellectual Property or confidentiality due to his or her activities as an employee of the Company or its Subsidiariesmaterial respect.
(g) None The transfer of the software owned by the Company or its Subsidiaries contains, or is distributed with, any software that is licensed pursuant to an open source, copyleft or community source code license or is otherwise subject to the terms of an Open Source License (including any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License, MIT License, Apache License or similar license arrangement or other distribution model; such software collectively referred to as “Open Source Software”) in any manner that requires or conditions the Company’s or any of its Subsidiaries’ use or distribution of such Open Source Software on the disclosure, licensing or distribution of any Intellectual Property owned by the Company and its Subsidiaries (other than modifications to such Open Source Software). To the knowledge of the Company, all Open Source Software distributed by the Company and its Subsidiaries is distributed in material compliance with the applicable Open Source License, except as would not have or reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the software owned by the Company or its Subsidiaries is free of all material defects, errors, or bugs, and does not contain viruses, trap doors, Trojan horses or other corruptants or contaminants that are designed to impair the normal function of IT Assets or result in unauthorized disclosure or access to Personal Data.
(h) Neither the Company nor any Subsidiary is a party to any agreement with a third party requiring the deposit of source code of any software owned by the Company or any Subsidiary for the benefit of any third party. No third party other than those who require such access to provide services for or on behalf of the Company or a Subsidiary has any current or contingent access or possession of (or the right to access or possess) such source code, and no such source code will be required to be released (from escrow or otherwise) Information in connection with the transactions contemplated by this Agreement.
Agreement complies with all applicable Privacy Laws and applicable privacy policies of Seller, BSAI and their respective Subsidiaries (i) The Company and its Subsidiaries are and at all times have been in material compliance with (i) all Privacy Policies, (ii) all Privacy Laws, and the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC to the extent applicable, and (iii) contracts pertaining to Personal Data, data privacy and data security (including those relating related to the cross border transfer, access Business) and handling, or processing of any Personal Data) ((i), (ii), and (iii), collectively, the “Data Protection Obligations”). Except as set out in Section 3.14(i) of the Company Disclosure Schedule, there have been no Claims made or to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a violation of Personal Data or Data Protection Obligations.
(j) The execution, delivery and performance of this Agreement or any of the other agreements, documents or instruments referred to in this Agreement; the consummation of the Merger; or any of the transactions contemplated by this Agreement will not result in any violation of any Privacy Policy of any websites or mobile applications owned by the Company and its Subsidiaries or Data Protection Obligations.
(k) To the knowledge of the CompanyAcquired Companies, except as would not have or reasonably be expected to have a Material Adverse Effect, all of the IT Assets are sufficient in all material respects for the current needs of the business of the Company and its Subsidiaries. The IT Assets (i) operate and perform in accordance with their documentation and functional specifications and (ii) since January 1, 2019, there have been no outages of or performance degradation in the IT Assets, in each case, except as would not be or reasonably be expected to be a Material Adverse Effect.
(l) The Company and its Subsidiaries use commercially reasonable efforts to protect and maintain the security and operation of Personal Data and their material IT Assets against any, breaches, outages, violations, loss or theft, or accidental, unlawful or unauthorized access to, or use, alteration, destruction, loss, modification, compromise, or other unauthorized disclosure of IT Assets or Personal Data, or other data security incidents (“Security Incident”). Except as set out in Section 3.14(l) of the Company Disclosure Schedule, to the Company’s knowledge, in the past three (3) years, there have been no material Security Incidents, except in each case as would not have or reasonably be expected to havenot, individually or in the aggregate, a Material Adverse Effect. The Company reasonably be expected to be material and its Subsidiaries have established, implemented and maintained a written information security program that is commercially reasonable and: (i) includes administrative, technical and physical safeguards adverse to safeguard the security, confidentiality, and integrity of their material IT Assets and Personal Data and (ii) protects against unauthorized access to their material IT Assets and Personal DataBusiness.
(m) For purposes of this Agreement:
Appears in 1 contract
Sources: Equity Purchase Agreement (Beacon Roofing Supply Inc)