Intellectual Property; Data Privacy. (a) Registered Intellectual Property. (i) Schedule 3.15(a)(i) hereto sets forth all (1) patents, trademark registrations, service mark registrations, domain name registrations, copyright registrations, and all applications for any of the foregoing, that are owned or purported to be owned by the Company (the “Registered Intellectual Property”), (2) the jurisdiction in which such item of Registered Intellectual Property has been issued, registered or filed and the applicable application, registration or serial number, date of application, registration, and/or issuance (as applicable), and the prosecution or registration status thereof, (3) for each domain name registration, the applicable domain name registrar, the expiration date for the registration, and name of the registrant, and (4) all actions that must be taken by the Company within six (6) months of the date hereof with respect to the Registered Intellectual Property, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of perfecting, maintaining or renewing any Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks owned or purported to be owned by the Company. (ii) All of the Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals, and timely payment of requisite fees. No loss or expiration of any of the Registered Intellectual Property is threatened, pending or reasonably foreseeable, except for patents expiring at the end of their statutory terms, and not as a result of any act or omission by the Company (including failure by the Company to pay any required maintenance fees). All of the Registered Intellectual Property is subsisting, valid and enforceable. (iii) No trademark or service mark (in each case, whether registered or unregistered), trade name, or domain name owned, used, or applied for by the Company conflicts or interferes with any trademark or service mark (in each case, whether registered or unregistered), trade name or domain name owned, used or applied for by any other Person.
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Section 3.8(a) of the Company Disclosure Schedule sets forth a complete and correct list, as of the date of this Agreement, of all Company Registered Intellectual Property.
IP and identifies (i) Schedule 3.15(a)(i) hereto sets forth all (1) patents, trademark registrations, service mark registrations, domain the name registrations, copyright registrations, and all applications for any of the foregoingowner(s), that (ii) the jurisdiction of application/registration, (iii) the application, Patent or registration number and (iv) the application or registration date, as applicable, for each item of Company Registered IP. Each of the Patents and Patent applications, which are owned or purported to be owned by the Company or one of its Subsidiaries and included in the Company Registered IP, properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Legal Requirements of the United States of America and any applicable foreign jurisdiction. All Company Registered IP owned or purported to be owned, in whole or in part, by the Company (the “Owned Company Registered Intellectual PropertyIP”), (2) is subsisting and, to the jurisdiction knowledge of the Company, valid, enforceable, and in full force and effect. With respect to the Owned Company Registered IP, all other Company Registered IP for which such item the Company has responsibility for prosecution and maintenance activities, and, to the knowledge of the Company, all other Company Registered Intellectual Property has IP, all necessary registration, maintenance, renewal and other relevant filing fees due through the Closing Date have been issuedtimely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, registered Trademark, Copyright, Internet domain name or filed and other authorities in the United States of America or the applicable applicationforeign jurisdiction, registration or serial numberas the case may be, date of application, registration, and/or issuance (as applicable), and the prosecution or registration status thereof, (3) for each domain name registration, the applicable domain name registrar, the expiration date for the registration, purpose of maintaining such Company Registered IP in full force and name of the registrant, and (4) all actions that must be taken by the Company within six (6) months effect. As of the date hereof with respect of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than pre-issuance patent prosecution activities being conducted before a Governmental Body in the ordinary course of business) is pending or, to the Registered Intellectual Propertyknowledge of the Company, including threatened, in which the payment use, scope, validity, enforceability or ownership of any registrationCompany Registered IP is being or has been contested or challenged. The Company and its Subsidiaries have complied with all Legal Requirements regarding the duty of disclosure, candor and good faith in connection with each Patent included in the Owned Company Registered IP and all other Company Registered IP for which the Company has responsibility for prosecution and maintenance activities.
(b) The Company or renewal fees or one of its Subsidiaries, as the filing case may be, (i) is the sole and exclusive owner of any documentsall right, applications or certificates for the purposes of perfecting, maintaining or renewing any title and interest in and to all Company Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks IP owned or purported to be owned by the CompanyCompany or any of its Subsidiaries and all other Company IP, in each case, free and clear of all Encumbrances other than Permitted Encumbrances, and (ii) has valid and continuing rights, pursuant to a valid written agreement that has been disclosed to Parent and Purchaser, to use all other material Intellectual Property Rights as the same are used in or necessary for the business of the Company and its Subsidiaries as presently conducted and proposed to be conducted. The Company IP and the Intellectual Property Rights licensed to the Company and its Subsidiaries (when used within the scope of the applicable license agreement or other grant of rights), constitute all of the Intellectual Property Rights necessary to enable the Company and its Subsidiaries to conduct the business of the Company and its Subsidiaries as currently conducted and currently proposed to be conducted. Notwithstanding anything to the contrary in this Section 3.8(b), the representations and warranties in this Section 3.8(b) shall not be construed to be representations or warranties with respect to infringement, misappropriation or other violation of Intellectual Property Rights.
(c) Since January 1, 2019, the Company or one of its Subsidiaries, as the case may be, has executed valid and enforceable written agreements with each of its directors, officers, employees, consultants and independent contractors who were or are, as applicable, engaged in creating or developing any material Company IP, pursuant to which each such Person has agreed to: (i) hold all Know-How and other confidential information of the Company and its Subsidiaries in confidence both during and after such Person’s employment or retention, as applicable; and (ii) All presently assign to the Company or one of its Subsidiaries, as applicable, all of such Person’s rights, title and interest in and to all Intellectual Property Rights created or developed for the Company or its Subsidiaries in the course of such Person’s employment or retention thereby. To the knowledge of the Registered Intellectual Property Company, no party thereto is in default or breach of any such agreements.
(d) No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been maintained effective by the filing of all necessary filingsor is being used to create, maintenance and renewalsin whole or in part, and timely payment of requisite fees. No loss or expiration of any material Company IP (other than as disclosed on Section 3.8(c) of the Registered Intellectual Property is threatened, pending or reasonably foreseeableCompany Disclosure Schedule), except for patents expiring at any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights to such Company IP and does not require or otherwise obligate the end Company or its Subsidiaries to grant or offer to any such Governmental Body or educational institution any license or other right to such Company IP (except for use rights during the term of the applicable agreement between the Company or one of its Subsidiaries and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Company IP (other than pursuant to any In-bound License disclosed on Section 3.8(e) of the Company Disclosure Schedule).
(e) Section 3.8(e) of the Company Disclosure Schedule sets forth each agreement pursuant to which the Company or one of its Subsidiaries (i) is granted a license or other rights to use (including a right or option to receive a license or be free from suit), under any Intellectual Property Right owned by any third party that is used by and material to the Company or its Subsidiaries in its or their statutory termsbusiness as currently conducted, other than (A) any material transfer agreements governing solely the provision of materials for research purposes, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings or off-the-shelf software licenses, in each case, which do not impose restrictions or non-asserts with respect to any Intellectual Property Rights material to and either owned by or exclusively licensed to the Company or any of its Subsidiaries (except for non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements), and (B) any such agreements where the only Intellectual Property Rights granted to the Company or any of its Subsidiaries are non-exclusive rights granted solely for the purpose of enabling Company’s use or exploitation of the services or deliverables provided to the Company pursuant to such agreements (each such agreement covered by clause (i), an “In-bound License”), or (ii) grants to any third party a license or otherwise provides or conveys any right (including a right or option to receive a license or be free from a suit) under any material Company IP or material Intellectual Property Right licensed to the Company under an In- bound License, other than (A) any material transfer agreements governing solely the provision of materials for research purposes, clinical trial agreements, nondisclosure agreements or services agreements or non-exclusive outbound licenses entered into in the ordinary course of business, in each case, which do not as a result transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries or grant rights or impose restrictions or non-asserts with respect to any Intellectual Property Rights material to and either owned by or exclusively licensed to the Company or any of its Subsidiaries (except for non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements), and (B) any such agreement granting non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements (each such agreement covered by clause (ii), an “Out-bound License”).
(f) (i) Since January 1, 2019, the operation of the business of the Company and its Subsidiaries has not infringed any valid and enforceable Intellectual Property Rights of any act Person, or omission misappropriated or otherwise violated any Intellectual Property Rights owned by any Person, and is not infringing any valid and enforceable Intellectual Property Rights of any Person, or misappropriating or otherwise violating any Intellectual Property Rights owned by any other Person; and (ii) to the knowledge of the Company, since January 1, 2019, no Person has infringed, misappropriated, or otherwise violated or is infringing, misappropriating or otherwise violating any Company IP or any Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries. As of the date of this Agreement, no Legal Proceeding is pending (or, to the knowledge of the Company, is threatened) (A) against the Company or its Subsidiaries alleging that the operation of the businesses of the Company and its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person (B) by the Company or its Subsidiaries that another Person has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Company IP or any Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries. Since January 1, 2019, neither the Company nor any of its Subsidiaries has received from any third party any written notice or other written communication alleging that the operation of the business of the Company and its Subsidiaries has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Intellectual Property Right of another Person.
(g) The Company and its Subsidiaries have taken commercially reasonable security and other measures, including failure measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality, and value of the material Know-How and other confidential information included in the Company IP. No trade secret, Know-How, or proprietary information material to the business of the Company and its Subsidiaries as presently conducted or proposed to be conducted has been authorized (in writing) or, to the knowledge of the Company, otherwise disclosed by the Company to pay any required maintenance fees). All Person in a manner that has resulted or is reasonably likely to result in the loss of trade secret or other rights in and to such information, other than pursuant to a non-disclosure agreement or other agreement adequately restricting the Registered disclosure and use of such Intellectual Property is subsistingRights or information, valid and enforceableexcluding any Know-How or proprietary information disclosed by the Company in publications or public filings, including as required under applicable securities laws.
(iiih) No trademark None of the Company IP or, to the knowledge of the Company, any material Intellectual Property Rights exclusively licensed to the Company or service mark (in each caseany of its Subsidiaries, whether registered is subject to any pending or unregistered)outstanding injunction, trade namedirective, order, judgment or other disposition of a dispute that adversely and materially restricts the use, transfer, registration or licensing of, or domain name adversely and materially affects the validity or enforceability of, any such Company IP or Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries.
(i) (i) The computer systems, including the software, firmware, hardware, networks, interfaces, platforms and related systems, owned, used, leased or applied for licensed by the Company conflicts and its Subsidiaries (collectively, the “Company Systems”) are sufficient for the conduct of its business as presently conducted by Company and its Subsidiaries, (ii) in the 12 months immediately prior to the date of this Agreement, there have been no failures, breakdowns or interferes other adverse events materially affecting any such Company Systems that have caused a material disruption or interruption to the conduct of the business of the Company and its Subsidiaries as presently conducted, and (iii) to the knowledge of the Company, in the 12 months immediately prior to the date of this Agreement, there have not been any incidents of unauthorized access or other security breaches of the Company Systems.
(j) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result in: (i) the loss or impairment of Purchaser’s right to own or use any of the Company IP to develop, commercialize or manufacture the Company Products in the manner such activities are currently conducted; or (ii) the payment of any additional consideration for Purchaser’s right to own or use any of the Company IP to develop, commercialize or manufacture Company Products in the manner such activities are currently conducted.
(k) The Company, the Company’s Subsidiaries and to the knowledge of the Company, any Person acting for or on the Company’s or any of its Subsidiaries’ behalf have at all times materially complied with (i) all applicable Privacy Laws, (ii) all of the Company’s and its Subsidiaries’ policies and notices regarding Personal Information, and (iii) all of the Company’s and its Subsidiaries’ contractual obligations with respect to Personal Information. The Company and each of its Subsidiaries has implemented and maintained commercially reasonable policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Personal Information. None of the Company’s or any trademark of its Subsidiaries’ privacy policies or service mark notices have contained any material omissions or been misleading or deceptive.
(l) Since January 1, 2019, the Company and each of its Subsidiaries has implemented and maintained commercially reasonable and appropriate technical and organizational safeguards, at least consistent with practices in the industry in which the Company and its Subsidiaries operate, designed to protect Personal Information and other confidential data in its possession or under its control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure and the Company and each caseof its Subsidiaries has taken commercially reasonable steps to require that any third party with access to Personal Information has implemented and maintained the same. To the knowledge of the Company, whether registered any third party who has provided any Personal Information to the Company has done so in compliance with applicable Privacy Laws, including providing any notice and obtaining any consent required.
(m) Since January 1, 2019, there have been no breaches, security incidents, misuse of, unauthorized access to or unregistered)unauthorized disclosure of (collectively, trade name a “Breach”) any Personal Information in the possession or domain name ownedcontrol of the Company or any of its Subsidiaries or collected, used or applied for processed by or on behalf of the Company or any other Person.of its Subsidiaries and neither Company nor any of its Subsidiaries has provided or been legally required to provide any notices to any Person in connection with such a Breach. Neither the Company nor any of its Subsidiaries has received any written notice of any claims (including notice from third parties acting on its behalf) of or investigations or regulatory inquiries related to, or been charged with, the violation of any Privacy Laws, applicable privacy policies, or contractual commitments with respect to Personal Information. To the knowledge of the Company, there are no facts or circumstances that could reasonably form the basis of any such notice or claim. The Company has implemented reasonable disaster recovery and business continuity plans, and taken actions consistent with such plans, to the extent required, to safegu
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Registered Section 3.9(a) of the Disclosure Schedule sets forth a true, correct and complete list as of the date of this Agreement of all patents, patent applications, trademark registrations and applications, copyright registrations and applications, domain name registrations, social media accounts, and material Software in each case, that are (i) within the Company Intellectual Property or Exclusively Licensed IP or (ii) used by the Company or any Subsidiary and material to the businesses of the Company and its Subsidiaries as currently conducted, specifying as to each such item, as applicable, the registered owner (and co-owner, as applicable, and, in the case of domain names, the registrant, and in the case of social media accounts, the account holder), jurisdiction of application and/or registration, the application and/or registration number, the date of application or registration, and the status of application or registration, including any deadlines for renewals or other required filings. Each of the Company Intellectual Property identified in Section 3.9(a) of the Disclosure Schedule is owned by and recorded in the name of the Company or one of its Subsidiaries is valid and enforceable, and all maintenance obligations that have come due with respect to such Company Intellectual Property have been timely paid.
(b) The Company or one of its Subsidiaries is the sole and exclusive legal and beneficial owner of all Company Intellectual Property, free and clear of all Liens, adverse claims or other restrictions or any requirement for Company to pay any future royalty to perfect such ownership interest or to use and exploit such Company Intellectual Property, except for Company Permitted Liens and non-exclusive licenses granted to customers of the Company or one of its Subsidiaries in the ordinary course of business and incidental to the sale or purchase of products or services. Neither the Company nor any Subsidiary of the Company has transferred ownership of, or granted any exclusive rights in, any Company Intellectual Property or Exclusively Licensed IP to any third party. With respect to any Company Intellectual Property not solely owned by the Company or its Subsidiaries, Section 3.9(b) of the Disclosure Schedule identifies all other legal and beneficial owners and the nature of such ownership interest.
(c) The execution, delivery and performance by the Company of this Agreement, consummation of the Contemplated Transactions that are required to be performed by the Company and compliance with the terms of this Agreement will not result in the loss, forfeiture, termination, license, or impairment of, or give rise to any obligation to transfer or to create, change or abolish, or limit, terminate, or consent to the continued use of, any rights in or change any royalties, revenue sharing or other payments made with respect to any Company Intellectual Property or Exclusively Licensed IP, or any Intellectual Property used by the Company or any Subsidiary and material to the businesses of the Company and its Subsidiaries as currently conducted.
(d) Section 3.9(d) of the Disclosure Schedule sets forth a complete and correct list of all Company IP Agreements, identifying for each such agreement the parties to the agreement, the date of the agreement, and, as applicable, whether the subject use is exclusive or non-exclusive, provided, that the following are excluded from the foregoing scheduling requirements and the schedule requirements under Section 3.10(a)(iv): (i) commercially available software are excluded from the scheduling requirement for In-Bound Licenses; (ii) non-exclusive licenses granted by the Company or any Subsidiary of the Company in the ordinary course of business incidental to the sale, lease or transfer of finished products or services to customers on standard terms and conditions (“Incidental Licenses”) are excluded from the scheduling requirement for Out-Bound Licenses; and (iii) provided, that Sellers have produced to Buyer a copy of each such current and historical standard form of agreement, each standard agreement executed by a Company Personnel assigning to the Company or any Subsidiary of the Company all Intellectual Property developed by such Person within the scope of such Person’s employment or engagement with the Company or any Subsidiary of Company is excluded from the scheduling requirement for Development Agreements. Except for the Company Permitted Liens, Company IP Agreements and Incidental Licenses, the Company or any Subsidiary of the Company has not granted any options with respect to, or has otherwise encumbered or placed limitations on any Company Intellectual Property or the use thereof by the Company and its Subsidiaries.
(e) None of the material Company Intellectual Property is or has been involved in any opposition, cancellation, interference, reissue or reexamination proceeding; no material Software owned by or exclusively licensed to the Company or any of its Subsidiaries (“Company Software”), or any other Company Intellectual Property, has been placed in escrow or was or is developed in whole or in part using, linked to or distributed with any Open Source Software in a manner that subjects any Company Software to any copyleft license or that requires or purports to require the Company or any of its Subsidiaries to grant any license or disclose any source code of any Company Software and no Company Intellectual Property is the subject of any judicial, administrative or arbitral order, award, decree, injunction, or stipulation. Neither the Company nor any of its Subsidiaries has received during the last six (6) years any notice expressly alleging that any Company Intellectual Property is invalid or unenforceable, or challenging any Company’s or its Subsidiaries ownership of or right to use any such rights.
(f) The Company or its Subsidiaries own or otherwise have a valid, legal right to use all material Intellectual Property used in connection with the business of the Company and its Subsidiaries as currently conducted.
(g) The products and services and the operation of the business of the Company and its Subsidiaries currently do not infringe, misappropriate or violate, and as offered in the last six (6) years have not infringed, misappropriated or violated any Intellectual Property rights of third parties, and during the last six (6) years neither the Company nor any of its Subsidiaries has received any notice stating, alleging or otherwise suggesting that the Company or any Subsidiary or any of their products or services is infringing, misappropriating or violating the Intellectual Property rights of any third party or that any Company Intellectual Property or Company IP Agreement is invalid or unenforceable. No third party has in the last six (6) years or is currently infringing, misappropriating or violating any Company Intellectual Property. Except as set forth in Section 3.9(g) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has sent during the last six (6) years any written notice asserting or threatening any action or claim that a third party is infringing, misappropriating or violating the Company Intellectual Property nor has the Company nor any of its Subsidiaries acquiesced in asserting any such action or claim. No proceeding alleging misappropriation or infringement of the Intellectual Property of any Person is pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, as of the date of this Agreement.
(h) The Company and the Subsidiaries of the Company have secured, by a written agreement, from each Inventor who participated in the development of Intellectual Property for the Company or Subsidiary of the Company, including any Company Personnel, individual independent contractor or third party, sole and exclusive legal and beneficial ownership of each Inventor’s right, title and interest in such Intellectual Property. Without limiting the foregoing, each current and former Company Personnel has executed a written and enforceable Contract in favor of the Company agreeing to comply with a written Company policy that provides for the non-disclosure by such Person of any Proprietary Information of Company or any Subsidiary of the Company. No Intellectual Property developed for the Company or any of its Subsidiaries by any current or former Company Personnel is subject to the rights of any former employer or R&D Sponsor of such Person and no current or former Company Personnel or individual independent contractor is in violation of or has violated any agreement with any third party (including any agreement relating to employment, confidentiality, Intellectual Property non-competition) by virtue of such Person being employed by or performing services for the Company or any Subsidiary of the Company of, without permission of the applicable third party, disclosing or using in connection with such Person’s employment or engagement with the Company or any Subsidiary of the Company any Proprietary Information or Intellectual Property owned by or subject to the rights of any third party. No employee, consultant or contractor who contributed to the creation or development of any of the Company Intellectual Property has challenged or threatened to challenge the Company’s or any of its Subsidiaries’ exclusive ownership of any Company Intellectual Property, and there exists no reasonable basis for any such challenge.
(i) Schedule 3.15(a)(iAt no time during the time that any Company Intellectual Property was Invented was the Company, or any Subsidiary of the Company or, to the Knowledge of the Company, any Inventor of Company Intellectual Property: operating under any grant from any R&D Sponsor, performing (directly or indirectly) hereto sets forth all (1) patentsresearch sponsored by any R&D Sponsor, trademark registrationsor subject to any employment agreement, service mark registrationsconsulting or professional services agreement or invention assignment or nondisclosure agreement or other obligation with any R&D Sponsor, domain name registrationsin each case that could adversely affect the rights or Company or any Subsidiary of the Company in, copyright registrationsor give any such R&D Sponsor rights in or to, and all applications such Company Intellectual Property, other than rights to use the Company Intellectual Property for the sole benefit of the Company or any Subsidiary of the Company. Without limiting the foregoing, to the Knowledge of the Company, no Inventor was employed by or has performed services for any R&D Sponsor during the period of time during which such Inventor also was performing services for the Company or any Subsidiary of the Company. No R&D Sponsor has any claim of right or license to, ownership of or other Lien on any Company Intellectual Property. Neither the Company nor any of its Subsidiaries has and has never been a member of, a contributor to, or affiliated with, any industry standards organization, body, working group, or similar organization, and no Company Intellectual Property was developed, in whole or in part, pursuant to or in connection with the development of any professional, technical or industry standard that are would subject any Company Intellectual Property to the rights of any third party or to license any Company Intellectual Property on any terms not determined by the Company or any Subsidiary of the Company in its sole discretion.
(j) The Company has taken (and caused its Subsidiaries to take) commercially reasonable precautions to protect and maintain the Company Intellectual Property, including to preserve the confidentiality of its trade secrets. Any disclosure by the Company of trade secrets included in Company Intellectual Property to any third party has been pursuant to the terms of a written agreement with such Person and any disclosure by the Company or any of its Subsidiaries of trade secrets of a Person has been pursuant to the terms of a written agreement with such Person or otherwise permitted by Law.
(k) The Company or any Subsidiary of the Company, as applicable is the exclusive owner of all right, title and interest in and to each element of data owned or purported to be owned by the Company or any Subsidiary of the Company (the “Registered Intellectual PropertyCompany-Owned Data”). The Company or any Subsidiary of the Company, as applicable, has the right to process all Company-Owned Data without obtaining any permission or authorization of any Person. Except as disclosed in Section 3.9(k) of the Disclosure Schedule, neither the Company nor any Subsidiary of the Company has entered into any Contract governing any Company-Owned Data or to which the Company or any Subsidiary of the Company is a party or bound by, except for Contracts with customers that do not deviate in any material respect from the Company’s standard form Contracts that have been provided to Buyer.
(l) Except as listed in Section 3.9(l) of the Disclosure Schedule, neither the Company or any Subsidiary of the Company has used or is using any deep learning, machine learning or other artificial intelligence technologies (“AI Technology”) in the business of the Company and its Subsidiaries, including in connection with any product or service offered by the Company or any of its Subsidiaries. No Company-Owned Data has been submitted or input into, used to train, or licensed for use with, any public or third party AI Technology.
(m) Except as disclosed in Section 3.9(m) of the Disclosure Schedule, all material information technology hardware (including personal computers, servers, and network hardware), Software, and network and communication systems and platform, used or held for use by the Company and its Subsidiaries (including any such assets operated for the Company or any Subsidiary of the Company by a third party service provider) (collectively, the “IT Infrastructure”) are either owned by, licensed or leased to, the Company or any of its Subsidiaries. The currently existing IT Infrastructure is adequate and sufficient in all material respects to meet the processing and other business requirements of the Company and its Subsidiaries as the business is currently conducted and as currently contemplated, including as to capacity, scalability and ability to process current and anticipated peak volumes in a timely manner. The IT Infrastructure: (i) operates and performs in all material respects in accordance with their documentation and functional specifications and otherwise as required by the Company’s and its Subsidiaries’ business as currently conducted, (2ii) the jurisdiction is in which such item of Registered Intellectual Property good working order, has been issuedproperly maintained, registered performed adequately and not materially malfunctioned or filed and failed at any time during the applicable application, registration or serial number, date of application, registration, and/or issuance (as applicable), and the prosecution or registration status thereof, last three (3) for each domain name registration, years excluding any temporary problems arising in the applicable domain name registrar, ordinary course of business that did not materially disrupt the expiration date for the registration, and name operations of the registrantCompany and the Company’s Subsidiaries and which have been corrected, and (4iii) all actions are free of any Malicious Code that must be taken by (A) significantly disrupt or adversely affect the functionality of any part of the IT Infrastructure; or (B) enable or assist any Person to access without authorization any IT Infrastructure. “Malicious Code” means any computer code or any other procedures, routines or mechanisms which may: (x) disrupt, disable, harm or impair in any material way such Software’s operation, (y) cause such Software to damage or corrupt any data, storage media, programs, equipment or communications of the Company within six (6) months or any of the date hereof its Subsidiaries or its or their clients, or otherwise interfere with respect to the Registered Intellectual Property, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of perfecting, maintaining or renewing any Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks owned or purported to be owned by the Company’s or its Subsidiaries’ operations or (z) permit any third party to access any such Software to cause disruption, disablement, harm, impairment, damage erasure or corruption (sometimes referred to as “traps,” “viruses,” “access codes,” “back doors” “trojan horses,” “time bombs,” “worms,” or “drop dead devices”).
(ii) All of the Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals, and timely payment of requisite fees. No loss or expiration of any of the Registered Intellectual Property is threatened, pending or reasonably foreseeable, except for patents expiring at the end of their statutory terms, and not as a result of any act or omission by the Company (including failure by the Company to pay any required maintenance fees). All of the Registered Intellectual Property is subsisting, valid and enforceable.
(iii) No trademark or service mark (in each case, whether registered or unregistered), trade name, or domain name owned, used, or applied for by the Company conflicts or interferes with any trademark or service mark (in each case, whether registered or unregistered), trade name or domain name owned, used or applied for by any other Person.
Appears in 1 contract
Sources: Equity Purchase Agreement (Concentra Group Holdings Parent, Inc.)
Intellectual Property; Data Privacy. (a) Section 2.8(a) of the Company Disclosure Schedule sets forth a complete and correct list, as of the date of this Agreement, of all Company Registered Intellectual Property.
IP and identifies for each such item: (i) Schedule 3.15(a)(i) hereto sets forth all (1) patents, trademark registrations, service mark registrations, domain the name registrations, copyright registrations, and all applications for any of the foregoing, that are owned or purported to be owned by the Company (the “Registered Intellectual Property”owner(s), (2ii) the jurisdiction in which such item of Registered Intellectual Property has been issuedapplication/registration, registered or filed and (iii) the applicable application, registration or serial number, date of ; (iv) the applicable application, registration and grant date, if applicable, and (v) for any such asset that constitutes Company Registered Licensed IP, the In-bound License under which the Company or any of its Subsidiaries has such license, right, or immunity. Each of the Patents and Patent applications, which are included in the Company Registered IP, properly identifies (or, in the case of any such Patents and Patent applications included in the Company Registered Licensed IP, to the knowledge of the Company, properly identifies) by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Legal Requirements of the United States of America or the applicable foreign jurisdiction. All Company Registered Owned IP is subsisting, valid, enforceable, and in full force and effect and, to the knowledge of the Company, all Company Registered Licensed IP is subsisting, valid, enforceable, and in full force and effect. With respect to (x) the Company Registered Owned IP, (y) Company Registered Licensed IP for which the Company has responsibility for prosecution and maintenance activities, and, (z) to the knowledge of the Company, all other Company Registered IP, (1) all necessary registration, and/or issuance maintenance, renewal and other relevant filing fees due through the Closing Date have been timely paid, (2) all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, Trademark, Copyright, Internet domain name or other authorities in the United States of America or the applicable foreign jurisdiction, as applicable)the case may be, for the purpose of maintaining such Company Registered IP in full force and the prosecution or registration status thereofeffect and, (3) for each domain name registration, the applicable domain name registrar, the expiration date for the registration, and name except as set forth on Section 2.8(a) of the registrantCompany Disclosure Schedule, and (4) all there are no such filings, payments or other actions that must be made or taken on or before the three (3)-month anniversary of the Closing Date. As of the date of this Agreement, no interference, opposition, reissue, reexamination, litigation or other proceeding of any nature (other than pre-issuance patent prosecution activities being conducted before a Governmental Body in the ordinary course of business) is pending or, to the knowledge of the Company, threatened, in which the use, scope, validity, enforceability or ownership of (A) any Company Registered Owned IP, or (B) to the knowledge of the Company, any Company Registered Licensed IP, is being or has been contested or challenged. The Company and its Subsidiaries have complied with all Legal Requirements regarding the duty of disclosure, candor and good faith in connection with each Patent included in the Company Registered Owned IP and all other Company Registered IP for which the Company has responsibility for prosecution and maintenance activities.
(b) The Company or one of its Subsidiaries, as the case may be, (i) is the sole and exclusive owner of all right, title and interest in and to all Company Registered Owned IP and all other Company Owned IP, in each case, free and clear of all Encumbrances other than non-exclusive licenses granted to service providers in the ordinary course of business and (ii) has a valid license or otherwise has continuing rights, pursuant to valid written agreements, to use and otherwise exploit, or contemplate exploiting, all other Intellectual Property Rights as the same are used in or necessary for the business of the Company and its Subsidiaries as presently conducted and as proposed by the Company, as of the date of this Agreement, to be conducted. The Company Registered Owned IP and, to the knowledge of the Company, the Company Registered Licensed IP is currently, and since January 10, 2022 has been, in compliance in all material respects with all Legal Requirements necessary to record and perfect the Company’s or the applicable third party’s interest in, and the chain of title of, the Company Registered IP and to ensure the ability to claim priority in all jurisdictions. The Company IP and all other Intellectual Property Rights licensed to the Company and its Subsidiaries (when used within the scope of the applicable license agreement), constitutes all of the material Intellectual Property Rights necessary and sufficient to enable the Company and its Subsidiaries to conduct the business of the Company and its Subsidiaries as currently conducted, and as proposed by the Company, as of the date of this Agreement, to be conducted. The Company or one of its Subsidiaries and, to the knowledge of the Company, all third party licensors of any Company Licensed IP, has executed valid and enforceable written agreements with each of its former and current directors, officers, employees, consultants and independent contractors who were or are, as applicable, engaged in creating or developing any material Company IP, pursuant to which each such Person has: (x) agreed to hold all Know-How and confidential information of the Company and its Subsidiaries or third party licensors in confidence both during and after such Person’s employment or retention, as applicable; and (y) presently assigned to the Company or one of its Subsidiaries, as applicable, all of such Person’s rights, title and interest in and to all material Intellectual Property Rights created or developed for the Company or its Subsidiaries in the course of such Person’s employment or retention thereby and the Company has maintained copies of each such executed written agreement to which the Company or its Subsidiaries are party. To the knowledge of the Company, no party thereto is in default or breach of any such agreements. All assignments and transfers of ownership with respect to (A) Company Registered Owned IP and (B) Company Registered Licensed IP for which the Company has responsibility for prosecution and maintenance activities have been duly executed and properly recorded with the United States Patent and Trademark Office in accordance with applicable Legal Requirements.
(c) No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been or is being used to create, in whole or in part, any Company IP, except for any such funding or use of facilities or personnel that (i) does not result in such Governmental Body or institution obtaining ownership or other rights to such Company IP, (ii) does not require or otherwise obligate the Company or its Subsidiaries to grant or offer to any such Governmental Body or educational institution any license or other right to such Company IP (except for use rights during the term of the applicable agreement between the Company or one of its Subsidiaries and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Company IP (other than pursuant to any In-bound License disclosed on Section 2.8(e) of the Company Disclosure Schedule), and (iii) does not require or otherwise obligate the Company or its Subsidiaries to substantially manufacture any Company Product, or any other product embodying any Company IP, in the United States. No current or former employee, consultant or, to the knowledge of the Company, independent contractor of the Company, in each case, who was involved in, or who contributed to the creation, conception, or development of any Company IP or Company Products has performed services for a Governmental Body or any university, college, research institute or other educational institution related to the Company’s or its Subsidiaries’ business as presently conducted in a manner that would affect the Company’s right in such Company IP or any Company Product that would affect the Company’s ownership or other rights in Intellectual Property Rights that are, or would otherwise constitute, Company IP.
(d) The Company and its Subsidiaries and, to the knowledge of the Company, all third party licensors of any material Company Licensed IP, have complied in all material respects with any and all obligations pursuant to the Patent and Trademark Law Amendments Act, 35 U.S.C. § 200 et seq., the ▇▇▇▇-▇▇▇▇ Act, and/or other similar applicable obligations under the Legal Requirements of any applicable jurisdiction, including with respect to any Patents that are part of the Company IP.
(e) Section 2.8(e) of the Company Disclosure Schedule sets forth each agreement pursuant to which the Company or one of its Subsidiaries (i) is granted a license or covenant not to sue or is assigned, granted, or provided or otherwise receives or is conveyed any right (including a right or option to receive a license or be free from suit), under any Intellectual Property Right owned by any third party, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings or off-the-shelf software licenses, in each case, with an annual cost of no more than $1,000,000 and which do not transfer ownership of Company IP from the Company or any of its Subsidiaries to any third party or impose restrictions or non-assertion covenants with respect to any Company IP, and (B) any such agreements where the only Intellectual Property Rights granted to the Company or any of its Subsidiaries are non-exclusive rights granted solely for the purpose of enabling Company’s use or exploitation of the services or deliverables provided to Company pursuant to such agreements, (each such agreement covered by clause (i), an “In-bound License”), or (ii) grants to any third party a license or covenant not to sue or assigns, grants, or otherwise provides or conveys any right (including a right or option to receive a license or be free from a suit) under any Company IP, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements or services agreements or non-exclusive outbound licenses entered into in the ordinary course of business, in each case, (I) which do not transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries to a third party or grant rights or impose restrictions or non-assertion covenants with respect to any Company IP (except for non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements) and (II) with an annual cost of no more than $1,000,000, or (B) any such agreement granting non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements (each such agreement covered by clause (ii), an “Out-bound License”).
(f) (i) The operation of the business of the Company and its Subsidiaries as currently conducted and as currently contemplated to be conducted according to the Company’s development strategy described in the Company SEC Documents or as otherwise made available to Merger Sub, including the research, development, manufacture and commercialization of the Company Products (including, for the avoidance of doubt, the Company Product designated as VG-3927), has not infringed any valid and enforceable Intellectual Property Rights of any Person, or misappropriated or otherwise violated any Intellectual Property Rights owned by any Person, and does not and, to the knowledge of the Company, will not infringe any valid and enforceable Intellectual Property Rights of any Person, or misappropriate or otherwise violate any Intellectual Property Rights owned by any other Person as of the date hereof; and (ii) to the knowledge of the Company, no Person has infringed, misappropriated, or otherwise violated, or is infringing, misappropriating or otherwise violating any Company IP. As of the date of this Agreement, no Legal Proceeding is pending (or, to the knowledge of the Company, is threatened) (A) against the Company or its Subsidiaries alleging that the operation of the businesses of the Company and its Subsidiaries, including the use of the Company IP and the development of the Company Products, infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person (B) by the Company within six or its Subsidiaries that another Person has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Company IP. Neither the Company nor any of its Subsidiaries has received any written notice or other written communication alleging that the operation of the business of the Company and its Subsidiaries, including the use of the Company IP and the development of the Company Products, has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Intellectual Property Right of another Person. Notwithstanding anything to the contrary herein, the representations and warranties in this Section 2.8(f) constitute the only representations and warranties hereunder with respect to infringement, misappropriation, or other violation of any Intellectual Property Rights.
(6g) months The Company and its Subsidiaries have taken reasonable security and other measures, including measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality, and value of the Know-How and other confidential information included in the Company IP, including requiring each Person with access to such Know-How and other confidential information to execute a binding confidentiality agreement to the extent such Person is not otherwise bound by substantially similar confidentiality obligations by virtue of such Person’s role or status. No trade secret, Know-How, or proprietary information material to the business of the Company and its Subsidiaries as presently conducted or as proposed by the Company, as of the date hereof with respect of this Agreement, to be conducted has been authorized to be disclosed or, to the Registered Intellectual Property, including the payment knowledge of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of perfecting, maintaining or renewing any Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks owned or purported to be owned by the Company.
(ii) All of the Registered Intellectual Property , has been maintained effective by the filing of all necessary filings, maintenance and renewals, and timely payment of requisite fees. No loss or expiration of any of the Registered Intellectual Property is threatened, pending or reasonably foreseeable, except for patents expiring at the end of their statutory terms, and not as a result of any act or omission by the Company (including failure actually disclosed by the Company to pay any Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of such Intellectual Property Rights or information, and excluding any Know-How or proprietary information disclosed by the Company in publications or public filings, including as required maintenance fees)under applicable securities laws. All To the knowledge of the Registered Intellectual Property is subsistingCompany, valid and enforceablethere has been no material violation, infringement or unauthorized access or disclosure of the foregoing.
(iiih) No trademark None of the Company Owned IP or, to the knowledge of the Company, any Company Licensed IP, is subject to any pending or service mark (in each caseoutstanding Order or other disposition of a dispute that adversely and materially restricts the use, whether registered transfer, registration or unregistered), trade namelicensing of, or domain name adversely and materially affects the validity or enforceability of, any such Company IP.
(i) The computer systems, including the software, firmware, hardware, networks, interfaces, platforms and related systems, owned, used, leased or applied for licensed by the Company conflicts and its Subsidiaries (collectively, the “Company Systems”) are sufficient in all material respects for the conduct of its business as presently conducted by Company and its Subsidiaries, (ii) in the twelve (12) months immediately prior to the date of this Agreement, there have been no failures, breakdowns or interferes with other adverse events materially affecting any trademark such Company Systems that have caused a material disruption or service mark interruption to the conduct of the business of the Company and its Subsidiaries as presently conducted, and (iii) to the knowledge of the Company, in each casethe twelve (12) months immediately prior to the date of this Agreement, whether registered there have not been any material incidents of unauthorized access or unregistered)other security breaches of the Company Systems.
(j) Except as would not reasonably be expected to have, trade name individually or domain name ownedin the aggregate, used or applied for a Material Adverse Effect, the execution and delivery of this Agreement by any other Person.the Company and the consummation of the Transactions will not (i) result in the breach of,
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Either the Company or a Company Subsidiary owns, and has all right, title, and interest in, duly licenses, or otherwise possesses all rights necessary to use, all Intellectual Property used in their respective businesses as currently conducted (collectively, the “Company Intellectual Property”).
(b) Section 3.14(b)(i) of the Company Disclosure Letter sets forth all Company Registered Intellectual Property.
(i. All required filings and fees related to such Company Registered Intellectual Property have been timely filed with and paid to the relevant Governmental Entities and authorized registrars. Section 3.14(b)(ii) Schedule 3.15(a)(i) hereto of the Company Disclosure Letter sets forth all (1) patents, trademark registrations, service mark registrations, domain name registrations, copyright registrations, and all applications for any of the foregoing, that are Intellectual Property owned or purported to be owned by the Company or any Company Subsidiary that is not Company Registered Intellectual Property and which is material to the businesses of the Company and Company Subsidiaries as currently conducted (collectively, together with the Company Registered Intellectual Property, the “Registered Company Owned Intellectual Property”).
(c) There are no pending or, to the knowledge of the Company, threatened claims in writing by any Person alleging infringement or misappropriation by the Company or any Company Subsidiary arising from their use of the Company Intellectual Property, and to the knowledge of the Company, the conduct of the businesses of the Company and Company Subsidiaries and their products and services do not infringe, misappropriate, dilute or otherwise violate any Intellectual Property rights of any Person.
(2d) Neither the jurisdiction Company nor any Company Subsidiary has made any claim during the past three (3) years of any misappropriation or infringement by any third party of its rights to or in which such item connection with the use of Registered any Company Intellectual Property; and (ii) to the knowledge of the Company, no Person is infringing or misappropriating any Company Intellectual Property.
(e) The Company and the Company Subsidiaries have taken reasonable measures to protect the confidentiality of their material Trade Secrets including requiring employees, contractors and other Persons having access thereto to execute written nondisclosure agreements. To the knowledge of the Company, none of the material Trade Secrets of the Company and the Company Subsidiaries have been disclosed or authorized to be disclosed by the Company or the Company Subsidiaries to any third party other than pursuant to a valid and enforceable nondisclosure agreement. To the knowledge of the Company, no third party to any nondisclosure agreement with the Company or any Company Subsidiary is in material breach, violation or default.
(f) Each Person who contributed, developed or conceived any Company Owned Intellectual Property has done so pursuant to a valid and enforceable written agreement that (i) protects the confidential information disclosed by the Company and its Subsidiaries and (ii) grants the Company and its Subsidiaries exclusive ownership of the Person’s contribution, development or conception and waives any non-assignable interests in such contribution, development or conception, such as moral rights.
(g) During the three (3) years prior to the date hereof, to the knowledge of the Company, there has been issuedno act or omission in respect of the use or enforcement of the Company Owned Intellectual Property that would reasonably be expected to result in the abandonment, registered cancellation or filed unenforceability of any such Intellectual Property.
(h) No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other Person who is not an employee of the Company or a Company Subsidiary. Neither the Company nor any Company Subsidiary has any duty or obligation to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other Person who is not an employee of the Company or any Company Subsidiary.
(i) No Company Proprietary Software is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that has been or is used in the businesses of the Company and its Subsidiaries in a manner that would (i) require or condition the use or distribution of such Company Proprietary Software on the disclosure, licensing, or distribution of any source code for any portion of such Company Proprietary Software or (ii) otherwise impose any limitation, restriction, or condition on the right or ability of the Company or any Company Subsidiary to use or distribute any Company Proprietary Software.
(j) The Company Proprietary Software does not contain any program routine, device, code or instructions (including any code or instructions provided by third parties) or other undisclosed feature, including, without limitation, a time bomb, virus, lock-out device, drop-dead device, malicious logic, worm, Trojan horse, bug, error, defect or trap door, that is designed to access, modify, delete, damage, disable, deactivate, interfere with, or otherwise harm the Company Proprietary Software or any of the Company’s information technology systems, data or other electronically stored information, or computer programs or systems.
(k) The Company and the Company Subsidiaries, and to the knowledge of the Company all of its and their providers of information technology services, have (i) complied in all material respects with their respective published privacy policies and internal privacy policies and guidelines and all applicable applicationLaws relating to privacy, registration data protection, user data or serial numberPersonal Data, date including Personal Data of applicationcustomers, registrationemployees, and/or issuance contractors and third parties who have provided information to the Company or any Company Subsidiary; and (as applicable)ii) implemented and maintained, in all material respects, a comprehensive security plan that includes industry standard administrative, technical and physical safeguards to ensure that Personal Data is protected against loss, damage, unauthorized access, unauthorized use, unauthorized modification, or other misuse. There has been no material loss, damage, unauthorized access, unauthorized use, unauthorized modification, or other breach of security of Personal Data maintained by or on behalf of the Company and the Company Subsidiaries. Within the past three (3) years, no Person has made any material claim or commenced any Action with respect to, and the prosecution Company and the Company Subsidiaries have not, to the knowledge of the Company, experienced any incident relating to, any actual or registration status thereofsuspected loss, (3) damage, unauthorized access, unauthorized use, unauthorized modification, or breach of security of Personal Data maintained or processed by or on behalf of the Company and the Company Subsidiaries. Except for each domain name registrationdisclosures of information permitted or required by privacy Laws or authorized by the provider of Personal Data, to the applicable domain name registrarknowledge of the Company, neither the expiration date for Company nor any of the registrationCompany Subsidiaries has shared, sold, rented or otherwise made available, and name of the registrantdoes not share, and (4) all actions that must be taken by the Company within six (6) months of the date hereof with respect sell, rent or otherwise make available, to the Registered Intellectual Property, including the payment of third parties any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of perfecting, maintaining or renewing any Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks owned or purported to be owned by the CompanyPersonal Data.
(iil) All The Company and the Company Subsidiaries have implemented business continuity and disaster recovery plans and have arranged for back-up data processing services adequate to meet their data processing needs in the event that the computer systems, networks, hardware, software, databases, websites, and equipment of the Registered Intellectual Property has been maintained effective by Company or the filing of all necessary filings, maintenance and renewals, and timely payment of requisite fees. No loss Company Subsidiaries or expiration of any of the Registered Intellectual Property their material components is threatened, pending rendered temporarily or reasonably foreseeable, except for patents expiring at the end of their statutory terms, and not permanently inoperative as a result of any act a natural or omission by other disaster. The computer systems, networks, hardware, software, databases, websites, and equipment of the Company (including failure by or the Company to pay Subsidiaries have not suffered any required maintenance fees). All failures, errors or breakdowns within the past three years that have caused any material disruption or interruption in the business of the Registered Intellectual Property is subsisting, valid Company and enforceable.
(iii) No trademark or service mark (in each case, whether registered or unregistered), trade name, or domain name owned, used, or applied for by the Company conflicts Subsidiaries. The computer systems, networks, hardware, software, databases, websites, and equipment of the Company or interferes with the Company Subsidiaries have not suffered any trademark failures, errors or service mark breakdowns within the past three (3) years that have caused any material disruption or interruption in each case, whether registered the business of the Company or unregistered), trade name or domain name owned, used or applied for by any other Person.the Company Subsidiaries
Appears in 1 contract
Sources: Merger Agreement (Fusion Telecommunications International Inc)
Intellectual Property; Data Privacy. (a) Section 3.8(a) of the Company Disclosure Schedule sets forth a complete and correct list, as of the date of this Agreement, of all Company Registered Intellectual Property.
IP and identifies (i) Schedule 3.15(a)(i) hereto sets forth all (1) patents, trademark registrations, service mark registrations, domain the name registrations, copyright registrations, and all applications for any of the foregoingowner(s), that (ii) the jurisdiction of application/registration, (iii) the application, Patent or registration number and (iv) the application or registration date, as applicable, for each item of Company Registered IP. Each of the Patents and Patent applications, which are owned or purported to be owned by the Company or one of its Subsidiaries and included in the Company Registered IP, properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Legal Requirements of the United States of America and, to the knowledge of the Company, the applicable foreign jurisdiction. All Company Registered IP owned or purported to be owned, in whole or in part, by the Company (the “Owned Company Registered Intellectual PropertyIP”), (2) is subsisting and, to the jurisdiction knowledge of the Company, valid, enforceable, and in full force and effect. With respect to the Owned Company Registered IP, all other Company Registered IP for which such item the Company has responsibility for prosecution and maintenance activities, and, to the knowledge of the Company, all other Company Registered Intellectual Property has IP, all necessary registration, maintenance, renewal and other relevant filing fees due through the Closing Date have been issuedtimely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, registered Trademark, Copyright, Internet domain name or filed and other authorities in the United States of America or the applicable applicationforeign jurisdiction, registration or serial numberas the case may be, date of application, registration, and/or issuance (as applicable), and the prosecution or registration status thereof, (3) for each domain name registration, the applicable domain name registrar, the expiration date for the registrationpurpose of maintaining such Company Registered IP in full force and effect and, and name except as set forth on Section 3.8(a) of the registrantCompany Disclosure Schedule, and (4) all there are no such filings, payments or other actions that must be made or taken by on or before the Company within six (6) months three-month anniversary of the Closing Date. As of the date hereof with respect of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than pre-issuance patent prosecution activities being conducted before a Governmental Body in the ordinary course of business) is pending or, to the Registered Intellectual Propertyknowledge of the Company, including threatened, in which the payment use, scope, validity, enforceability or ownership of any registrationCompany Registered IP is being or has been contested or challenged. The Company and its Subsidiaries have complied with all Legal Requirements regarding the duty of disclosure, candor and good faith in connection with each Patent included in the Owned Company Registered IP and all other Company Registered IP for which the Company has responsibility for prosecution and maintenance activities.
(b) The Company or renewal fees or one of its Subsidiaries, as the filing case may be, (i) is the sole and exclusive owner of any documentsall right, applications or certificates for the purposes of perfecting, maintaining or renewing any title and interest in and to all Company Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks IP owned or purported to be owned by the Company or any of its Subsidiaries and all other Company IP, in each case, free and clear of all Encumbrances other than Permitted Encumbrances and (ii) has valid and continuing rights, pursuant to valid written agreements, to use all other Intellectual Property Rights as the same are used in or necessary for the business of the Company and its Subsidiaries as presently conducted and as proposed by the Company, as of the date of this Agreement, to be conducted. The Owned Company Registered IP is currently in compliance in all material respects with all Legal Requirements necessary to record and perfect the Company’s interest in, and the chain of title of, the Owned Company Registered IP and to ensure the ability to claim priority in all jurisdictions. The Company IP and the Intellectual Property Rights licensed to the Company and its Subsidiaries (when used within the scope of the applicable license agreement), constitutes all of the material Intellectual Property Rights necessary and sufficient to enable the Company and its Subsidiaries to conduct the business of the Company and its Subsidiaries as currently conducted and as proposed by the Company, as of the date of this Agreement, to be conducted. The Company or one of its Subsidiaries, as the case may be, has executed valid and enforceable written agreements with each of its former and current directors, officers, employees, consultants and independent contractors who were or are, as applicable, engaged in creating or developing any material Company IP, pursuant to which each such Person has: (i) agreed to hold all Know-How and confidential information of the Company and its Subsidiaries in confidence both during and after such Person’s employment or retention, as applicable; and (ii) presently assigned to the Company or one of its Subsidiaries, as applicable, all of such Person’s rights, title and interest in and to all material Intellectual Property Rights created or developed for the Company or its Subsidiaries in the course of such Person’s employment or retention thereby and the Company has maintained copies of each such executed written agreement. To the knowledge of the Company, no party thereto is in default or breach of any such agreements.
(iic) All No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been or is being used to create, in whole or in part, any material Company IP (other than as disclosed on Section 3.8(a) of the Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals, and timely payment of requisite fees. No loss or expiration of any of the Registered Intellectual Property is threatened, pending or reasonably foreseeableCompany Disclosure Schedule), except for patents expiring at any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights to such Company IP and does not require or otherwise obligate the end Company or its Subsidiaries to grant or offer to any such Governmental Body or educational institution any license or other right to such Company IP (except for use rights during the term of the applicable agreement between the Company or one of its Subsidiaries and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Company IP (other than pursuant to any In-bound License disclosed on Section 3.8(d) of the Company Disclosure Schedule). No current or former employee, consultant or independent contractor of the Company who contributed to the creation or development of any material Company IP has, to the knowledge of the Company, performed services for a Governmental Body or any university, college, research institute or other educational institution related to the Company’s or its Subsidiaries’ business as presently conducted during a period of time during which such employee, consultant or independent contractor was also performing services for the Company or its Subsidiaries.
(d) Section 3.8(d) of the Company Disclosure Schedule sets forth each agreement pursuant to which the Company or one of its Subsidiaries (i) is granted a license or is assigned, granted, or provided or otherwise receives or is conveyed any right (including a right or option to receive a license or be free from suit), under any Intellectual Property Right owned by any third party that is used by and material to the Company or its Subsidiaries in its or their statutory termsbusiness as currently conducted, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings or off-the-shelf software licenses, in each case, with an annual cost of no more than $1,000,000 and which do not impose restrictions or non-asserts with respect to any Intellectual Property Rights material to and either owned by or exclusively licensed to the Company or any of its Subsidiaries, and (B) any such agreements where the only Intellectual Property Rights granted to the Company or any of its Subsidiaries are non-exclusive rights granted solely for the purpose of enabling Company’s use or exploitation of the services or deliverables provided to Company pursuant to such agreements, (each such agreement covered by clause (i), an “In-bound License”), or (ii) grants to any third party a license or assigns, grants, or otherwise provides or conveys any right (including a right or option to receive a license or be free from a suit) under any material Company IP or material Intellectual Property Right licensed to the Company under an In-bound License, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements or services agreements or non-exclusive outbound licenses entered into in the ordinary course of business, in each case, which do not transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries or grant rights or impose restrictions or non-asserts with respect to any Intellectual Property Rights owned by or exclusively licensed to the Company or any of Subsidiaries (except for non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements), in each case, with an annual cost of no more than $1,000,000 and which do not transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries or grant rights or impose restrictions or non-asserts with respect to any Intellectual Property Rights owned by or exclusively licensed to the Company or any of its Subsidiaries, or (B) any such agreement granting non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements (each such agreement covered by clause (ii), an “Out-bound License”).
(e) (i) The operation of the business of the Company and its Subsidiaries as a result currently conducted has not infringed any valid and enforceable Intellectual Property Rights of any act Person, or omission misappropriated or otherwise violated any Intellectual Property Rights owned by any Person, and is not infringing any valid and enforceable Intellectual Property Rights of any Person, or misappropriating or otherwise violating any Intellectual Property Rights owned by any other Person; and (ii) to the knowledge of the Company, no Person has infringed, misappropriated, or otherwise violated, or is infringing, misappropriating or otherwise violating any material Company IP or any Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries. As of the date of this Agreement, no Legal Proceeding is pending (or, to the knowledge of the Company, is threatened) (A) against the Company or its Subsidiaries alleging that the operation of the businesses of the Company and its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person (B) by the Company or its Subsidiaries that another Person has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Company IP or any Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries. Neither the Company nor any of its Subsidiaries has received any written notice or other written communication alleging that the operation of the business of the Company and its Subsidiaries has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Intellectual Property Right of another Person. Notwithstanding anything to the contrary herein, the representations and warranties in this Section 3.8(e) constitute the only representations and warranties hereunder with respect to infringement, misappropriation, or other violation of any Intellectual Property Rights.
(f) The Company and its Subsidiaries have taken reasonable security and other measures, including failure measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality, and value of the Know-How and other confidential information included in the Company IP. No trade secret, Know-How, or proprietary information material to the business of the Company and its Subsidiaries as presently conducted or as proposed by the Company, as of the date of this Agreement, to be conducted has been authorized to be disclosed or, to the knowledge of the Company, has been actually disclosed by the Company to pay any required maintenance fees). All Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of the Registered such Intellectual Property is subsistingRights or information, valid and enforceableexcluding any Know-How or proprietary information disclosed by the Company in publications or public filings, including as required under applicable securities laws.
(iiig) No trademark None of the Company IP or, to the knowledge of the Company, any material Intellectual Property Rights exclusively licensed to the Company or service mark (in each caseany of its Subsidiaries, whether registered is subject to any pending or unregistered)outstanding injunction, trade namedirective, order, judgment or other disposition of a dispute that adversely and materially restricts the use, transfer, registration or licensing of, or domain name adversely and materially affects the validity or enforceability of, any such Company IP or material Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries.
(i) The computer systems, including the software, firmware, hardware, networks, interfaces, platforms and related systems, owned, used, leased or applied for licensed by the Company conflicts and its Subsidiaries (collectively, the “Company Systems”) are sufficient in all material respects for the conduct of its business as presently conducted by Company and its Subsidiaries, (ii) in the 12 months immediately prior to the date of this Agreement, there have been no failures, breakdowns or interferes with other adverse events materially affecting any trademark such Company Systems that have caused a material disruption or service mark interruption to the conduct of the business of the Company and its Subsidiaries as presently conducted, and (iii) to the knowledge of the Company, in each casethe 12 months immediately prior to the date of this Agreement, whether registered there have not been any incidents of unauthorized access or unregistered)other security breaches of the Company Systems.
(i) Except as would not reasonably be expected to have, trade name individually or domain name ownedin the aggregate, used a Material Adverse Effect, the execution and delivery of this Agreement by the Company and the consummation of the Transactions will not (i) result in the breach of, or applied for by create on behalf of any third party the right to terminate or modify any In-bound License or Out-bound License, (ii) result in or require the grant, assignment or transfer to any other PersonPerson of any license or other right or interest under, to or in any of the Company IP or Intellectual Property Rights licensed to the Company or any of its Subsidiaries or (iii) cause a material loss or impairment of any Company IP or Intellectual Property Rights licensed to the Company or any of its Subsidiaries.
(j) The Company, the Company’s Subsidiaries and to the knowledge of the Company, any Person acting for or on the Company’s or any of its Subsidiaries’ behalf have at all times materially complied with (i) all applicable Privacy Laws, (ii) all of the Company’s and its Subsidiaries’ policies and notices regarding Personal Information, and (iii) all of the Company’s and its Subsidiaries’ contractual obligations with respect to Personal Information. The Company and each of its Subsidiaries has implemented and maintained commercially reasonable policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Personal Information. None of the Company’s or any of its Subsidiaries’ privacy policies or notices have contained any material omissions or been materially misleading or deceptive.
(k) The Company and each of its Subsidiaries has implemented and at all times maintained commercially reasonable and appropriate technical and organizational safeguards to protect Personal Information and other confidential data in its possession or under its control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure and the Company and each of its Subsidiaries has taken commercially reasonable steps to require that any third party with access to Personal Information collected by or on behalf of the Company or any of its Subsidiaries has implemented
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Section 3.4(a) of the Seller Disclosure Schedule sets forth a true and complete in all material respects list of all Registered IP and material unregistered trademarks included in the Purchased Intellectual Property.
(i) Schedule 3.15(a)(i) hereto sets forth all (1) patents, trademark registrations, service mark registrations, domain name registrations, copyright registrations, and all applications including for any of the foregoing, that are owned or purported to be owned by the Company (the “Registered Intellectual Property”), (2) the jurisdiction in which each such item of Registered Intellectual Property has been issuedIP, registered or filed and the applicable applicationPerson that owns such Registered IP, registration or serial numberthe title, date jurisdiction of application, registration, and/or issuance (as applicable)filing, and the prosecution registration or registration status thereofapplication numbers and dates, (3) for each domain name registrationas applicable, the applicable domain name registrar, the expiration date for the registration, as well as a complete and name accurate in all material respects list of the registrant, and (4) all actions that must be taken by within ninety (90) days after the Company within six (6) months of the date hereof Closing Date with respect to the any such Registered Intellectual PropertyIP, including the payment of any filing, examination, registration, maintenance or maintenance, renewal and other fees or the filing of any documents, applications or certificates for the purposes of maintaining, perfecting, maintaining preserving or renewing such Registered IP and to avoid loss or abandonment thereof, in each case in accordance with applicable Law. Each item of such Registered IP is subsisting, unexpired, and, to Seller’s Knowledge, valid and enforceable. There is no opposition or cancellation Proceeding currently pending with respect to any such Registered IP, and the Seller Group has not received any written claim challenging or contesting the ownership, validity, or enforceability of any such Registered IP (other than publicly-available ordinary-course office actions and similar administrative notices received in connection with the prosecution of an application for any item of such Registered IP). Neither Seller nor, to the Seller’s Knowledge, any of its Representatives have misrepresented, or failed to disclose, any facts or information in any application for any such Registered IP that would constitute fraud with respect to such application or that would otherwise affect the enforceability of any such Registered IP. In connection with such Registered IP, all necessary filing, examination, registration, maintenance, renewal and other fees and taxes due as of the Closing Date have been timely paid in full, and all necessary documents (including responses to office actions and other correspondence from any Governmental Authority) and certificates have been timely filed with all relevant Governmental Authorities for the purposes of maintaining such Registered IP, in each case in accordance with applicable Law and to avoid loss or abandonment thereof. Seller has delivered to Purchaser correct and complete copies of all non-public applications for Registered IP.
(b) Each item of the Purchased Intellectual Property is entirely and exclusively owned by the Seller Group, free and clear of all Encumbrances. None of the Purchased Intellectual Property is subject to an exclusive license or exclusive right granted to any Person. None of the Purchased Intellectual Property is subject to any Judgment adversely affecting the ownership or use thereof. Other than the Seller Group, no other Person has any right to bring a Proceeding against a third party for past, present, or future infringement of the Purchased Intellectual Property or any right to any damages recovered in any such action.
(c) The Purchased Intellectual Property, together with Purchaser’s rights under the Included Contracts and the Technology License Agreement, constitute all Intellectual Property necessary for the Seller Group to operate the Business as currently conducted.
(d) None of the activities or business presently conducted by the Business infringes or violates, or constitutes a misappropriation of, any Intellectual Property rights of any Person; provided that the foregoing is to Seller’s Knowledge with respect to Patents and Trademarks. The Seller Group has not received any written notice alleging that any of the Business or Products infringe, violate, dilute, or misappropriate any Intellectual Property of any third party.
(e) To the Seller’s Knowledge, no other Person is infringing, violating or misappropriating any of the Purchased Intellectual Property. Schedule 3.15(a)(iiThe Seller Group has not brought any Proceeding for infringement or misappropriation of any Purchased Intellectual Property. The Seller Group has not notified any Person (including any demand letter, unsolicited offer to license, or any cease and desist letter) hereto sets forth all material unregistered trademarks owned or purported made any assertions to be owned by the Companyany Person that such Person is infringing, misappropriating, or violating any Purchased Intellectual Property.
(iif) All The Seller Group secured from each of its employees and contractors an executed proprietary information and invention assignment agreement, substantially in the Seller Group’s standard form of such agreement, which form has been made available to the Purchaser for review. Such agreements assign to the Seller Group ownership of all right, title and interest in any Purchased Intellectual Property arising in connection with the service performed by such employees and contractors for or on behalf of the Registered Seller Group (whether by assignment or operation of law), and, to the extent permitted under applicable Law, include customary waivers of non-assignable rights, including moral rights. To the Seller’s Knowledge, no current or former employee, consultant or independent contractor that was involved in the development of any Purchased Intellectual Property is in violation of any term of any agreement, or any other agreement relating to the relationship of any such employee, consultant or independent contractor with a member of the Seller Group as it relates to that employee, consultant or contractor’s services to the Business.
(g) No funding, facilities or resources of any government, university, college, other educational institution, multi-national, bi-national or international organization or research center was used in the development of the Products or Purchased Intellectual Property.
(h) No Patents that are included in the Purchased Intellectual Property are subject to any “License on Transfer” (aka “LOT”), network, or commitment pursuant to which such Patents may not be enforced once the Patents are sold or assigned to any other Person.
(i) The Seller Group has been maintained effective by taken commercially reasonable steps to protect and maintain any Trade Secrets included in the filing of all necessary filings, maintenance and renewalsPurchased Intellectual Property, and timely payment to the Seller’s Knowledge, there are no material unauthorized uses or disclosures of requisite feesany such Trade Secrets.
(j) To the Seller’s Knowledge, there are no unresolved warranty claims with respect to any Product. To Seller’s Knowledge, none of the Product software, at the time made commercially available, contains any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components that permit unauthorized access or the unauthorized disablement or erasure of such Product, or data or other software of users or other harmful or malicious code.
(k) The Seller Group has not disclosed, licensed, or delivered to any third party, or permitted the disclosure, license, or delivery to any escrow agent or other party of, any software source code included in any Purchased Intellectual Property or Product. No loss event has occurred, and no circumstance or expiration condition exists, that will, or would reasonably be expected to, require the disclosure, license, or delivery to any third party of any such source code. Without limiting the foregoing, neither the execution nor performance of this Agreement nor the consummation of any of the Registered transactions contemplated by this Agreement will result in a release from escrow or other delivery to a third party of any such source code.
(l) The Seller Group has not used Open Source Materials in any manner that, with respect to the source code of any Product or any Purchased Intellectual Property, (i) requires its disclosure or distribution in source code form, (ii) requires the licensing thereof for the purpose of making derivative works, (iii) imposes any restriction on the consideration to be charged for the distribution thereof, or (iv) creates, or purports to create, obligations for the Seller Group with respect to Purchased Intellectual Property or the source code of any Product or grants, or purports to grant, to any third party, any rights or immunities under Purchased Intellectual Property or the source code of any Product. The Seller Group is not in material breach of any license to any Open Source Materials incorporated into, combined with, or distributed with any Products. The Seller Group has not made any Purchased Intellectual Property available as Open Source Material.
(m) Seller has no material obligation to pay any royalties, license fees or other amounts or provide or pay any other material consideration to any Person by reason of ownership, use, exploitation, practice, sale or disposition of any Purchased Intellectual Property or reproducing, making, using, selling, offering for sale, distributing or importing any Product.
(n) No member of the Seller Group has entered into a Contract (A) regarding joint development of any Products, (B) by which any Seller Group member grants, granted or is required to grant any ownership right or title to any Purchased Intellectual Property, or (C) under which any Seller Group member grants or receives an option or right of first refusal or right of first negotiation relating to any Purchased Intellectual Property.
(o) The execution, delivery or performance of this Agreement or any Ancillary Agreement contemplated hereby, the consummation of the transactions contemplated by this Agreement or such Ancillary Agreements and the satisfaction of any Closing condition set forth herein will not cause, to the Seller’s Knowledge (i) any member of the Seller Group to grant to any other Person any right to or with respect to any Purchased Intellectual Property, or (ii) Purchaser to be obligated to pay any royalties or other fees or consideration with respect to Intellectual Property of any Person in excess of those payable by Seller Group in the absence of this Agreement or the transactions contemplated hereby.
(p) As of the Closing Date, all Purchased Intellectual Property is threatenedand will be fully transferable, pending or reasonably foreseeablealienable and licensable by the Purchaser without any material restriction and without payment of any kind to any other Person, except for patents expiring at the end of their statutory terms, and not as a result of any act or omission required by the Company (including failure by the Company to pay any required maintenance fees). All of the Registered Intellectual Property is subsisting, valid and enforceableapplicable Law.
(q) Except with respect to any Included Contracts, ▇▇▇▇▇▇ has not entered into any Contract to defend, indemnify or hold harmless any Person against any charge of infringement, misappropriation, violation or similar claims with respect to any Purchased Intellectual Property. No customer or other Person has requested that any member of the Seller Group defend or indemnify the customer or such Person from a third party claim, suit or action related to an allegation that a Product infringes, violates or misappropriate a third party’s Intellectual Property.
(r) To the Seller’s Knowledge, (i) the Seller Group has been during the two (2)-year period immediately prior to the date of this Agreement in material compliance with all applicable Data Protection Laws, solely with respect to the Business and the Purchased Assets; (ii) the Seller Group has not, during the two (2)-year period immediately prior to the date of this Agreement, received any written notice from any applicable Governmental Authority alleging a violation of any Data Protection Laws, solely with respect to the Business and the Purchased Assets; (iii) No trademark the Seller Group, with respect to Personal Data collected or service mark (in each case, whether registered or unregistered), trade name, or domain name owned, used, solely in connection with the Business and the Purchased Assets, has taken reasonable actions (including implementing reasonable technical, physical or applied for administrative safeguards) to protect Personal Data in its possession or under its control against unauthorized use, access or disclosure; and (iv) during the two (2) year period immediately prior to the date of this Agreement, there has been no material unauthorized use, access, disclosure of or involving Personal Data collected by or used, solely in connection with the Company conflicts or interferes Business and the Purchased Assets. All transfers to Seller of Personal Data that is included in Purchased Assets shall be made in full compliance with all applicable Data Protection Laws.
(s) Except as set forth in Section 3.4(s) of the Seller Disclosure Schedules, the Seller Group has not used any trademark or service mark (AI Technology in each case, whether registered or unregistered), trade name or domain name owned, used or applied for by connection with the operation of the Business. No released Products incorporate any other PersonAI Technology.
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Registered Intellectual Property.Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(i) Schedule Section 3.15(a)(i) hereto sets forth of the Company Letter contains a complete and accurate list of all (1) patents, trademark registrations, service mark registrations, domain name registrations, copyright registrationsmaterial Company Intellectual Property that constitutes Registrable IP, and all applications for any indicates whether each such item of the foregoing, that are Company Intellectual Property is (A) owned or purported to be owned exclusively by the Company or any of its Subsidiaries or (B) owned jointly by the “Registered Intellectual Property”)Company or any of its Subsidiaries, (2) on the jurisdiction in which one hand, and one or more third parties, on the other hand. For each such item of Registered the Company Intellectual Property has been issuedthat is owned, registered or filed and the applicable application, registration or serial number, date of application, registration, and/or issuance (as applicable), and the prosecution or registration status thereof, (3) for each domain name registration, the applicable domain name registrar, the expiration date for the registration, and name of the registrant, and (4) all actions that must be taken but not owned exclusively by the Company within six (6or any of its Subsidiaries, Section 3.15(a)(i) months of the date hereof Company Letter also identifies the third-party co-owner(s) thereof. To the Knowledge of the Company, except as set forth on Section 3.15(a)(i) of the Company Letter, the Company and its Subsidiaries exclusively own all rights, title and interest in and to all Owned Intellectual Property free and clear of any Liens (other than Permitted Liens) and are licensed or otherwise have the right to use all other Intellectual Property used in or necessary for the conduct of the Company’s and its Subsidiaries’ business as currently conducted; provided, however, the foregoing shall not be construed as a representation or warranty with respect to infringement, misappropriation or other violation of the Registered Intellectual Property, including the payment Property of any registrationPerson. The Patents included in the Company Intellectual Property that constitutes Registrable IP are subsisting and, maintenance or renewal fees or to the filing Knowledge of any documents, applications or certificates for the purposes of perfecting, maintaining or renewing any Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks owned or purported to be owned by the Company.
(ii) All of the Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals, and timely payment of requisite fees. No loss or expiration of any of the Registered Intellectual Property is threatened, pending or reasonably foreseeable, except for patents expiring at the end of their statutory terms, and not as a result of any act or omission by the Company (including failure by the Company to pay any required maintenance fees). All of the Registered Intellectual Property is subsisting, valid and enforceable.
(ii) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since January 30, 2025, infringed upon or otherwise violated, or is infringing upon or otherwise violating, the Intellectual Property rights of any Person.
(iii) No trademark There is no suit, claim, action, investigation or service mark proceeding pending or threatened in writing against the Company or any of its Subsidiaries with respect to, and, since January 30, 2025 neither the Company nor any of its Subsidiaries has been notified in writing of (in each case, whether registered A) any alleged infringement or unregistered), trade name, or domain name owned, used, or applied for other violation by the Company conflicts or interferes any of its Subsidiaries of the Intellectual Property rights of any Person or (B) any allegation that any material issued Patents included in the Company Intellectual Property are invalid or unenforceable (other than in the ordinary course of prosecution at any Patent office).
(iv) To the Knowledge of the Company, no Person is infringing upon or otherwise violating any Company Intellectual Property.
(v) The Company and its Subsidiaries have taken commercially reasonable measures to maintain the confidentiality of material Trade Secrets included in the Company Intellectual Property. To the Knowledge of the Company, such Trade Secrets included in the Company Intellectual Property have not been disclosed to any Person except pursuant to written non-disclosure agreements or professional confidentiality obligations or as required by applicable Law.
(vi) The Company and each of its Subsidiaries have used commercially reasonable efforts to diligently prosecute all Patent applications it has filed or for which it otherwise controls prosecution. All issuance, renewal, maintenance and other payments and all documents or other materials required to be paid or filed with the applicable Intellectual Property office or register with respect to any trademark material Patents or service mark Patent applications included in the Company Intellectual Property for which the Company or any of its Subsidiaries has the obligation to pay have been timely paid in full or filed in a timely manner, as applicable. To the Knowledge of the Company, the Company and each of its Subsidiaries have complied with all applicable Laws, including any duties of candor to applicable patent offices, in connection with the filing, prosecution and maintenance of such Patents and, to the extent applicable, such Patent applications.
(vii) To the Knowledge of the Company and its Subsidiaries have obtained from all current or former employees, or consultants who have created or developed (or are creating or developing) material Intellectual Property for or on behalf of the Company and its Subsidiaries, written, valid and enforceable non-disclosure and assignment-of-rights agreements for the benefit of the Company and its Subsidiaries pursuant to which each such party assigns to the Company or one of its Subsidiaries all Intellectual Property rights in each casework product created by such party in connection with such party’s employment or engagement with the Company or any of its Subsidiaries.
(viii) To the Knowledge of the Company, whether registered no government funding and no facilities or unregisteredother resources of any university, college, other educational institution or research center were used in the development of any material Company Intellectual Property that have resulted in such government, university, college, or other educational institution or research center having any ownership or license rights with respect to material Company Intellectual Property.
(ix) To the Knowledge of the Company, the Company and its Subsidiaries have not, since January 30, 2025, experienced any unauthorized access to or other breach of security with respect to the information technology systems owned or controlled by the Company and its Subsidiaries (the “IT Systems”), trade name that would require the Company or domain name ownedits Subsidiaries to notify impacted customers, used employees, users, or applied for by any other PersonPersons that their Personal Data has been breached or exfiltrated under any applicable Privacy Laws. To the Knowledge of the Company, the IT Systems are free from bugs and other defects and do not contain any “virus,” “worm,” “spyware,” “ransomware” or other malicious software. The Company and its Subsidiaries have in place commercially reasonable security measures designed to protect the IT Systems. The Company and its Subsidiaries take commercially reasonable measures designed to (i) and monitor the confidentiality, integrity, and security of the IT Systems, and to (ii) correct any material problems that are identified.
(x) Since January 30, 2025, (A) the Company and its Subsidiaries have complied with (x) all applicable Laws relating to the collection, use, and processing of Personal Data (the “Privacy Laws”); (y) their own respective public privacy policies relating to the collection, storage, use, disclosure and transfer of any Personal Data collected by the Company or any of its Subsidiaries; and (z) all Contracts governing the use and disclosure of Personal Data to which the Company or any of its Subsidiaries is a party and (B) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any written complaint, action or investigation regarding their collection, use or disclosure of Personal Data that is pending or unresolved.
(b) To the knowledge of the Company, the research and development budget in Section 3.15(b) of the Company Letter (the “R&D Budget”) discloses on a substantially accurate basis, as of the date hereof, the budgeted amount of research and development expenditures by or on behalf of the Company covering the period beginning as of the date hereof and ending on October 28, 2025.
(c) Notwithstanding anything to the contrary set forth herein, Section 3.08(a)(iv), Section 3.08(b) and this Section 3.15 contains all of the representations and warranties provided by the Company with respect to matters related to Intellectual Property, Personal Data and IT Systems.
Appears in 1 contract
Sources: Merger Agreement (Metsera, Inc.)
Intellectual Property; Data Privacy. (a) Registered Schedule 3.11(a) sets forth a complete and accurate list of all issued Patents, pending Patent applications, registered Marks, pending applications for registration of Marks, registered Copyrights, and pending applications for registration of Copyrights that are Owned Intellectual Property and all material unregistered Marks that are Owned Intellectual Property.
, including, for each item, (i) Schedule 3.15(a)(i) hereto sets forth all (1) patents, trademark registrations, service mark registrations, domain name registrations, copyright registrations, and all applications for any the record owner of the foregoing, that are owned or purported to be owned by the Company (the “Registered Intellectual Property”)such item, (2ii) the jurisdiction in which such item of Registered Intellectual Property has been issued, issued or registered or filed is pending and (iii) the applicable applicationissuance, registration or serial number, application number and date of applicationsuch item, registration, and/or issuance (as applicable), and the prosecution or registration status thereof, (3) for each domain name registration, the applicable domain name registrar, the expiration date for the registration, and name of the registrant, and (4iv) all actions and any action, filing and payment that must be taken by the Company or made within six (6) months of after the date hereof Closing with respect to the Registered Intellectual Property, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of perfecting, maintaining or renewing any Registered foregoing. There is no Software that is Owned Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks owned or purported to be owned by the Company.
(ii) All of the Registered Owned Intellectual Property that is the subject of an application, certificate, filing, registration, or other document issued by, filed with, or recorded by any Governmental Entity, quasi-governmental authority, or registrar has been maintained effective by the filing of all necessary filings, maintenance maintenance, and renewals, and timely payment of requisite fees. No loss or expiration of any of the Registered Owned Intellectual Property is threatened, pending pending, or reasonably foreseeable, except for patents expiring at the end of their statutory terms, and not as a result of any act or omission by the Company (including failure by the Company to pay any required maintenance fees).
(b) The Company owns all right, title, and interest in, or has a valid and enforceable written license or other permission to use, all Company Intellectual Property. The Company is the sole and exclusive owner of all Owned Intellectual Property, free and clear of all Liens other than Permitted Liens. All of the Registered Owned Intellectual Property is valid, subsisting, valid and enforceable.
(iiic) No trademark or service mark (in each caseThe Company, whether registered or unregistered)and the former and current conduct of the business of the Company and the products and services thereof, trade nameincluding the manufacture, making, use, offer for sale, sale, licensing, distribution, importation, and other commercial exploitation of such products and services and the Company Intellectual Property have not infringed, misappropriated, or domain name ownedotherwise violated, usedand do not infringe, misappropriate, or applied for otherwise violate, any Intellectual Property rights or rights of publicity of any Person. The Company is not the subject of any pending legal proceeding that either alleges a claim of infringement, misappropriation, or other violation of any Intellectual Property or rights of publicity of any Person, or challenges the ownership, use, patenting, registration, validity, or enforceability of any Owned Intellectual Property, and no such claims have been asserted or threatened against the Company. No Person has notified the Company that any of such Person’s Intellectual Property rights or rights of publicity are infringed, misappropriated, or violated by the Company conflicts or interferes with that the Company requires a license to any trademark of such Person’s Intellectual Property rights.
(d) To the Sellers’ Knowledge, no Person has infringed, misappropriated, or service mark otherwise violated, or is infringing, misappropriating, or otherwise violating, any Owned Intellectual Property. No written or oral claims alleging any infringement, misappropriation, or other violation have been made against any Person by the Company.
(e) The Company has taken all necessary action to maintain and protect all of the Company Intellectual Property. The Company has taken commercially reasonable measures to protect the confidentiality of all Trade Secrets and other confidential information that is Owned Intellectual Property and any confidential information owned by any Person to whom the Company has a confidentiality obligation. No such Trade Secrets or confidential information have been disclosed by the Company to any Person other than pursuant to a written agreement restricting the disclosure and use of such Trade Secrets and confidential information by such Person. No Person is in each caseviolation of any such confidentiality agreements.
(f) No Person (including current and former founders, whether registered employees, contractors, and consultants of the Company) has any right, title, or unregisteredinterest, directly or indirectly, in whole or in part, in any Company Intellectual Property. Except as set forth on Schedule 3.11(f), trade name all Persons who have created any portion of, or domain name ownedotherwise would have any rights in or to, any Intellectual Property for or on behalf of the Company have executed valid and enforceable written assignments of such Intellectual Property and waivers of all moral rights to the Company, and Seller Holders have delivered true and complete copies of such assignments to Buyer. To the Sellers’ Knowledge, no Person is in violation of any such assignment agreements.
(g) No funding, facilities, or personnel of any Governmental Entity or any university or other educational institution or research organization has been used in connection with the development of any Owned Intellectual Property and the Company and its predecessors have not participated in any standards setting organization. No Governmental Entity, university or applied other educational institution, research organization or standards setting organization has any right, title or interest in or to any Owned Intellectual Property.
(h) All IT Systems are operational, fulfill the purposes for which they were acquired or developed, have security, back-ups, and disaster recovery arrangements in place and hardware and Software capacity, support, maintenance, and trained personnel which are sufficient in all material respects for the current and currently anticipated future needs of the business of the Company. The Company has disaster recovery, data back-up, and security plans and procedures and has taken reasonable steps consistent with industry standards for similarly situated businesses to safeguard the availability, security, and integrity of the Company IT Assets and all data and information stored thereon, including from unauthorized access and infection by any (i) back door, time bomb, drop dead device, or other Software routine designed to disable a computer program automatically with the passage of time or under the positive control of a Person other than the user of the program; (ii) virus, Trojan horse, worm, or other Software routine or hardware component designed to permit unauthorized access, to disable, erase, or otherwise harm Software, hardware, or data; and (iii) similar programs. The Company has maintained in the ordinary course of business all required licenses and service contracts, including the purchase of a sufficient number of license seats for all Software, with respect to the Company IT Assets. The Company IT Assets have not suffered any material failure at any time.
(i) The Company is in possession of all documentation and other materials relating to the Software used in the business of the Company that is reasonably necessary for the use, maintenance, enhancement, development, and other exploitation of such Software as used in, or currently under development for, the business of the Company, including installation and user documentation, engineering specifications, flow charts, programmers’ notes, and know-how.
(j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Company’s right to own or use any Company Intellectual Property. Immediately subsequent to the Closing, the Company Intellectual Property will be owned or available for use by the Company on terms and conditions identical to those under which the Company owns or uses the Company Intellectual Property immediately prior to the Closing, without payment of additional fees.
(k) Except as set forth in Schedule 3.11(k), the Company is and within the past 5 years has been in compliance in all material respects with all applicable Privacy and Security Requirements. The Company, and to the Sellers’ Knowledge any third-party Processing Protected Data or managing technology that houses Protected Data on behalf of the Company, has not experienced any Security Breaches, and the Company is not aware of any notices or complaints from any Person regarding such a Security Breach. The Company has not received any notices or complaints from any Person regarding the unauthorized Processing of Protected Data or non-compliance with applicable Privacy and Security Requirements.
(l) The Company has valid and legal rights to Process all Protected Data that is Processed by or on behalf of the Company in connection with the use and/or operation of its products, services and business, and the execution, delivery, or performance of this Agreement will not affect these rights or violate any applicable Privacy and Security Requirements. The Company has implemented, and has required all third parties that receive Protected Data from or on behalf of Company to implement, reasonable physical, technical and administrative safeguards consistent with industry standards for similarly situated businesses that are designed to protect Protected Data from unauthorized access by any Person, and to ensure compliance in all material respects with all applicable Privacy and Security Requirements.
(m) Neither the Company, nor any applicably IT Assets or Protected Data, were impacted or compromised by the cyberattack on Kaseya Limited that occurred in July 2021 the (“Kaseya Incident”). The Company has, and applicable Persons that provide services to the Company have, implemented measures to protect applicable IT Assets and Protected Data from the effects of the Kaseya Incident, including but not limited to having had deployed the Sophos anti-malware and end-point detection and response solution for a period of twelve (12) months prior to the Closing Date. The Company has, and applicable Persons that provide services to the Company have, performed testing, including but not limited to a compromise assessment, and completed any maintenance, upgrades, installations, including to the extent not already implemented, administrative level password rotations and enabling multifactor authentication on all administrative IT Assets, to ensure that the Kaseya Incident did not cause an intrusion into, or compromise of, such IT Assets and Protected Data.
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Intellectual Property; Data Privacy. (a) Part 3.8(a) of the Company Disclosure Schedule sets forth a complete and correct list, as of the date of this Agreement, of all Company Registered Intellectual Property.
IP, except for those Patents that are licensed by Company to Purchaser under that certain License Agreement by and between the Company and Genzyme Corporation, dated as of November 8, 2017 (“Purchaser Licensed Patents”). Except for the Purchaser Licensed Patents, Part 3.8(a) of the Company Disclosure Schedule identifies (i) Schedule 3.15(a)(i) hereto sets forth all (1) patents, trademark registrations, service mark registrations, domain the name registrations, copyright registrations, and all applications for any of the foregoingapplicant/registrant, that (ii) the jurisdiction of application/registration, (iii) the application, Patent or registration number and (iv) any other co-owners, for each item of Company Registered IP. Each of the Patents and Patent applications, which are owned or purported to be owned by the Company or one of its Subsidiaries and included in the Company Registered IP, properly identifies by name each and every inventor of the inventions claimed therein as determined in accordance with applicable Legal Requirements of the United States of America and, to the knowledge of the Company, the applicable foreign jurisdiction. All Company Registered IP owned or purported to be owned, in whole or in part, by the Company (the “Owned Company Registered Intellectual PropertyIP”), (2) and to the jurisdiction knowledge of the Company, all Company Registered IP exclusively licensed to the Company is subsisting and, to the knowledge of the Company, valid, enforceable, and in full force and effect. With respect to the Owned Company Registered IP other than Purchaser Licensed Patents, all other Company Registered IP for which such item the Company has responsibility for prosecution and maintenance activities, and, to the knowledge of the Company, all other Company Registered Intellectual Property has been issuedIP, registered or filed and the applicable application, registration or serial number, date of application, all necessary registration, and/or issuance (as applicable)maintenance, renewal and other relevant filing fees due through the prosecution or registration status thereofClosing Date have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, (3) for each Trademark, Copyright, Internet domain name registrationor other authorities in the United States of America or to Company’s knowledge, the applicable domain name registrarforeign jurisdiction, as the expiration date case may be, for the registration, purpose of maintaining such Company Registered IP in full force and name of the registrant, and (4) all actions that must be taken by the Company within six (6) months effect. As of the date hereof with respect of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than pre-issuance patent prosecution activities being conducted before a Governmental Body in the ordinary course of business) is pending or, to the Registered Intellectual Propertyknowledge of the Company, including threatened, in which the payment use, scope, validity, enforceability or ownership of any registrationCompany Registered IP is being or has been contested or challenged. The Company and its Subsidiaries have complied with all Legal Requirements regarding the duty of disclosure, maintenance candor and good faith in connection with each Patent included in the Company Registered IP.
(b) The Company or renewal fees or one of its Subsidiaries, as the filing case may be, is the sole and exclusive owner of any documentsall right, applications or certificates for the purposes of perfecting, maintaining or renewing any title and interest in and to all Company Registered Intellectual Property. Schedule 3.15(a)(ii) hereto sets forth all material unregistered trademarks IP owned or purported to be owned by the Company or any of its Subsidiaries and all other Company IP, and possesses legally enforceable rights, pursuant to valid written agreements, to use all other Table of Contents material Intellectual Property Rights used by or necessary for the conduct of the business as presently conducted by the Company and its Subsidiaries, in each case, free and clear of all Encumbrances other than Permitted Encumbrances. The Company or one of its Subsidiaries, as the case may be, has executed valid and enforceable written agreements with each of its former and current directors, officers, employees, consultants and independent contractors who were or are, as applicable, engaged in creating or developing any material Company IP, pursuant to which each such Person has: (i) agreed to hold all Know-How and confidential information of the Company and its Subsidiaries in confidence both during and after such Person’s employment or retention, as applicable; and (ii) presently assigned to the Company or one of its Subsidiaries, as applicable, all of such Person’s rights, title and interest in and to all material Intellectual Property Rights created or developed for the Company or its Subsidiaries in the course of such Person’s employment or retention thereby. To the knowledge of the Company, no party thereto is in default or breach of any such agreements.
(iic) All No funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational institution has been or is being used to create, in whole or in part, any material Company IP (other than as disclosed on Part 3.8(a) of the Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals, and timely payment of requisite fees. No loss or expiration of any of the Registered Intellectual Property is threatened, pending or reasonably foreseeableCompany Disclosure Schedule), except for patents expiring at any such funding or use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership rights to such Company IP and does not require or otherwise obligate the end Company or its Subsidiaries to grant or offer to any such Governmental Body or educational institution any license or other right to such Company IP (except for use rights during the term of the applicable agreement between the Company or one of its Subsidiaries and such Governmental Body or educational institution), including the right to receive royalties for the practice of such Company IP (other than pursuant to any In-bound License disclosed on Part 3.8(d) of the Company Disclosure Schedule). No current or former employee, consultant or independent contractor of the Company who contributed to the creation or development of any material Company IP has, to the knowledge of the Company, performed services for a Governmental Body or any university, college, research institute or other educational institution related to the Company’s or its Subsidiaries’ business as presently conducted during a period of time during which such employee, consultant or independent contractor was also performing services for the Company or its Subsidiaries.
(d) Part 3.8(d) of the Company Disclosure Schedule sets forth each agreement pursuant to which the Company or one of its Subsidiaries (i) is granted a license or is assigned, granted, or provided or otherwise receives or is conveyed any right (including a right to receive a license or be free from suit), under any Intellectual Property Right owned by any third party that is used by and material to the Company or its Subsidiaries in its or their statutory termsbusiness as currently conducted, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings or off-the-shelf software licenses, in each case, with an annual cost of no more than $250,000 and which do not impose restrictions or non-asserts with respect to any Intellectual Property Rights material to and either owned by or exclusively licensed to the Company or any of its Subsidiaries, and (B) any such agreements where the only Intellectual Property Rights granted to the Company or any of its Subsidiaries are non-exclusive rights granted solely for the purpose of enabling Company’s use or exploitation of the services or deliverables provided to Company pursuant to such agreements, (each such agreement covered Table of Contents by subclause (i), an “In-bound License”), or (ii) grants to any third party a license or assigns, grants, or otherwise provides or conveys any right (including a right to receive a license or be free from a suit) under any material Company IP or material Intellectual Property Right licensed to the Company under an In-bound License, other than (A) any material transfer agreements, clinical trial agreements, nondisclosure agreements or services agreements or non-exclusive outbound licenses entered into in the ordinary course of business, in each case, which do not transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries or grant rights or impose restrictions or non-asserts with respect to any Intellectual Property Rights owned by or exclusively licensed to the Company or any of Subsidiaries (except for non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements), in each case, with an annual cost of no more than $250,000 and which do not transfer ownership of Intellectual Property Rights from the Company or any of its Subsidiaries or grant rights or impose restrictions or non-asserts with respect to any Intellectual Property Rights owned by or exclusively licensed to the Company or any of its Subsidiaries, or (B) any such agreement granting non-exclusive rights granted solely for the purpose of providing services or conducting activities within the scope of such agreements (each such agreement covered by subclause (ii), an “Out-bound License”).
(e) To the knowledge of the Company: (i) the operation of the business of the Company and its Subsidiaries as a result currently conducted has not infringed any valid and enforceable Intellectual Property Rights of any act Person, or omission misappropriated or otherwise violated any Intellectual Property Rights owned by any Person, and is not infringing any valid and enforceable Intellectual Property Rights of any Person, or misappropriating or otherwise violating any Intellectual Property Rights owned by any other Person; and (ii) no Person has infringed, misappropriated, or otherwise violated, or is infringing, misappropriating or otherwise violating any Company IP or any Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries. As of the date of this Agreement, no Legal Proceeding is pending (or, to the knowledge of the Company, is threatened) (A) against the Company or its Subsidiaries alleging that the operation of the businesses of the Company and its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Rights of another Person (B) by the Company or its Subsidiaries that another Person has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Company IP or any Intellectual Property Rights exclusively licensed to the Company or its Subsidiaries. Since January 1, 2014 and, to the knowledge of the Company, prior to such date, neither the Company nor any of its Subsidiaries has received any written notice or other written communication alleging that the operation of the business of the Company and its Subsidiaries has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any Intellectual Property Right of another Person.
(f) The Company and its Subsidiaries have taken reasonable security and other measures, including failure measures against unauthorized disclosure, to protect and maintain the secrecy, confidentiality, and value of the Know-How and other confidential information included in the Company IP. No trade secret, Know-How, or proprietary information material to the business of the Company and its Subsidiaries as presently conducted has been authorized to be disclosed or, to the knowledge of the Company, has been actually disclosed by the Company to pay any required maintenance fees). All Person other than pursuant to a non-disclosure agreement or other agreement adequately restricting the disclosure and use of the Registered such Intellectual Property is subsistingRights or information, valid and enforceable.
(iii) No trademark excluding any know-how or service mark (in each case, whether registered or unregistered), trade name, or domain name owned, used, or applied for proprietary information disclosed by the Company conflicts in publications or interferes with any trademark or service mark (in each casepublic filings, whether registered or unregistered), trade name or domain name owned, used or applied for by any other Personincluding as required under applicable securities laws.
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