Intellectual Property; Software. Other than as set forth on Schedule 5.12: (a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company. (b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements. (c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements. (d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted. (i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Sources: Equity Purchase Agreement, Equity Purchase Agreement (Impac Mortgage Holdings Inc), Equity Purchase Agreement
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Section 4.18(a) of the Parent Disclosure Letter contains a true, correct and complete list of all issued Patents and pending applications for Patents, registered Trademarks and pending applications to register Trademarks, Parent Domain Names, and registered Copyrights and applications to register Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to Section 4.18(b) of the Company except for mass market Software licensed to the Company that is commercially available Parent Disclosure Letter contains a true, correct and subject to complete list of all material Contracts, licenses, sublicenses, assignments and indemnities, other than “shrink-wrap,” or “click-through” or similar license agreements.
(c) The Company is not a party to , standard end-user or distributor license and sale Contracts which and related maintenance and support Contracts entered into in the ordinary course of business, that relate to: (i) any CopyrightsParent Software (including any delivery, Patent Rights release, copy, license or Trademarks; disclosure of source code of any Parent Software to any third party) necessary to conduct the business of the Parent Companies as presently conducted or (ii) any Trade Secrets other Parent Intellectual Property necessary to conduct the business of the Parent Companies as presently conducted and owned by or licensed a third party to which any Parent Company holds a license (collectively, the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsParent Intellectual Property Agreements”).
(dc) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could notExcept as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect, (i) a Parent Company solely and exclusively owns all right, title and interest in the Parent Owned Intellectual Property, free and clear of any Liens (other than Permitted IP Encumbrances) or has a valid right to use any other Intellectual Property used or held for use in Parent’s business, free and clear of any Liens (other than Permitted IP Encumbrances), (ii) the Parent Owned Intellectual Property and the rights of the Parent Companies in Intellectual Property under the Parent Intellectual Property Agreements are all those Intellectual Property rights necessary to conduct the business of the Parent Companies as presently conducted and (iii) the execution, delivery and performance of this Agreement by each of Parent, Merger Sub and Merger LLC, and the consummation by each of Parent, Merger Sub and Merger LLC of the Transactions, do not and will not affect any ownership, license rights or similar rights in and to the Parent Intellectual Property.
(d) Except as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect, (i) the business of the Parent Companies (including the Parent Software), as presently conducted, does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any other Person, (ii) there are no infringement or misappropriation Actions pending with respect to any Parent Intellectual Property and (iii) no Person has infringed, misappropriated or otherwise violated, and no Person is currently infringing, misappropriating or otherwise violating, any Parent Owned Intellectual Property.
(e) Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have a Parent Material Adverse Effect, all employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any Parent Owned Intellectual Property have executed a valid and enforceable agreement or are subject to an employment policy granting an assignment in favor of a Parent Company of all right, title and interest in such material.
(f) Except as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect (i) except to the extent the disclosure of Know-How included in the Parent Owned Intellectual Property has been made pursuant to applicable Law or in accordance with standard industry practice, the Parent Companies have taken commercially reasonable measures to own and maintain the confidentiality of all Know-How included in the Parent Owned Intellectual Property that a Parent Company has elected to protect as a trade secret, (ii) there has been no breach or violation by any other party to any confidentiality obligations governing the use of such Know-How, (iii) there has been no unauthorized disclosure or use of such Know-How of the Parent Companies and (iv) the Parent Companies have taken commercially reasonable steps to prevent the unauthorized disclosure or use of and to otherwise protect and enforce their rights in all such Know-How of the Parent Companies.
(g) To the knowledge of Parent, Parent owns or has a right to access and use in all material respects all the Parent IT Systems, as such Parent IT Systems are currently used by the Parent Companies. The Parent Companies maintain policies and procedures that protect the confidentiality, integrity and security of the Parent IT Systems and the Parent Data in accordance in all material respects with generally accepted standards within the information technology industry for companies of comparable size and stage. To the knowledge of Parent, the Parent IT Systems (i) are reasonably adequate for the current operation of the Parent Companies, (ii) are, including in relation to any data stored or processed therein, fully functional in all material respects and no material errors or defects which have not been fully remedied or rectified have been discovered therein, (iii) have not suffered any material security breach or any security breach required to be reported under the Regulation Systems Compliance and Integrity, as adopted by the U.S. Securities and Exchange Commission, since November 3, 2015 and (iv) do not contain any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing, any of the following functions: (A) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed or (B) damaging or destroying any data or file without the user’s consent.
(h) Except as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect, no Open Source Code licensed to any Parent Company is incorporated into any Parent Software owned by any Parent Company in a manner that would require that any such Parent Software owned by any Parent Company be made available or distributed in source code form.
(i) Except as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect, (i) the Parent Companies are in, and at all times since January 1, 2014, have been in, compliance with all Parent Privacy Policies and applicable Laws concerning the collection, storage, use, transfer, disclosure and other processing and tracking of Personal Data gathered or accessed in the course of their operations, (ii) none of the Parent Companies has received written notice of any, and to the knowledge of Parent, there is no, violation of any such Laws or Parent Privacy Policies through the date hereof, (iii) the Parent Companies are in compliance in all respects with all of their respective contractual commitments with respect to such Personal Data and have commercially reasonable safeguards in place to protect such Personal Data in their possession or control from unauthorized access consistent with such applicable Laws concerning the collection, storage, use, transfer, disclosure and other processing and tracking of Personal Data, Parent Privacy Policies and contractual commitments, (iv) there have been no data breaches involving any such Personal Data in the possession of any of the Parent Companies, and none of the Parent Companies nor any other Person has made any illegal or unauthorized use or disclosure of such Personal Data that was collected by or on behalf of any of the Parent Companies and (v) none of the Parent Companies is subject to any contractual requirements, privacy policies or other legal obligations that, following the Effective Time and as a result of the Transactions, would prohibit the Parent Companies after the Effective Time from receiving or using Parent Data substantially in the manner in which the Parent Companies receive and use such Parent Data immediately prior to the Effective Time.
(j) Except as individually or in the aggregate, has not had, and would not reasonably be expected to have a Parent Material Adverse Effect, the Parent Companies have all necessary and required rights to license, use, sublicense and distribute all Parent Data to conduct the business of the Parent Companies as presently conducted.
(k) For purposes of this Agreement, the following terms shall have the meanings assigned below:
Appears in 2 contracts
Sources: Merger Agreement (CBOE Holdings, Inc.), Merger Agreement (Bats Global Markets, Inc.)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by Section 4.14(a) of the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available Disclosure Schedules sets forth a true and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: complete list of all (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; registered trademarks and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge applications for trademark registration of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim registered domain names of the Company; (iii) patent applications and patent registrations of the Company; and (iv) registered copyrights and applications for copyright registration of the Company (collectively, the “Scheduled Intellectual Property”). The Company solely owns, free and clear of any infringementLien, misappropriation, violation or dilution of any all Scheduled Intellectual Property or any such and Material Software (but, with respect to Material Software developed by independent contractors, only to the extent that title may become vested in software in connection with an independent contractor relationship under applicable Law and subject to statutory rights of any other Person has been made or asserted in respect reversion and termination). The Material Software and the Scheduled Intellectual Property collectively comprise all of the Intellectual Property that is material to the operation of the Business; Company’s business as presently conducted.
(iiib) no claim To the Knowledge of invalidity the Company, the use of any Scheduled Intellectual Property owned or Material Software by the Company has been made by any other Person; (iv) no Proceedings are pending or, to and its Subsidiaries does not infringe on or otherwise violate the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; , except where such infringements, violations and (vi) failures to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, be in each case except as could not, individually or in the aggregate, reasonably be expected to accordance would not have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has received during the two (2) years prior to the date hereof any written notice of any pending third-party claim with respect to any Scheduled Intellectual Property or Material Software, the adverse outcome of which would have a Material Adverse Effect.
(d) To the Knowledge of the Company, no Person is infringing on or otherwise violating, in any material respect, any right of the Company with respect to any Scheduled Intellectual Property or Material Software.
(e) The Material Software of the Company has been developed by persons who were, at the time of development, either (i) employees of the Company or (ii) party to “work-for-hire” arrangements with the Company, or who have executed instruments of assignment in favor of the Company as assignee of any intellectual property rights underlying the Material Software.
(f) The Company has scanned the Material Software prior to the date hereof for viruses and other malware using customary virus detection software and such scans have not resulted in reports of any such viruses or other malware. None of the Material Software is subject to any “copyleft” or similar obligations that require the disclosure or licensing of any source code underlying any Material Software. The Material Software conforms substantially to the most recently-published specifications and documentation relating thereto.
(g) No government funding has been used to develop the Material Software. The Company has exercised all commercially reasonable efforts to preserve in accordance with normal industry practices any trade secrets it may have covering the Material Software. None of the Material Software is subject to any software escrow agreement with a third party.
(h) The representations and warranties set forth in this Section 4.14 are the Company’s sole and exclusive representations and warranties regarding Intellectual Property and Material Software matters.
Appears in 2 contracts
Sources: Merger Agreement (Blackline, Inc.), Merger Agreement (Blackline, Inc.)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsExcept as do not and would not reasonably be expected to have a Company Material Adverse Effect, Patent Rights (i) Section 3.17(a) of the Company Disclosure Schedule sets forth an accurate and Trademarks complete list of all (including any assumed A) patents and patent applications, (B) trademark or fictitious names used service ▇▇▇▇ applications and registrations, and (C) copyright registrations and applications, in each case, owned or filed by the Company within or any of its Subsidiaries, and (ii) either the previous two Company or a Subsidiary of the Company owns, free and clear of all Liens (2) years) owned by other than Permitted Liens), or licensed has a license to use, all Intellectual Property, including Software, used in connection with the Companybusiness of the Company and its Subsidiaries as currently conducted.
(b) There Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Knowledge of the Company as of the date of this Agreement, the conduct of the business as currently conducted by the Company and its Subsidiaries does not infringe, misappropriate or otherwise violate any Person’s Intellectual Property, (ii) as of the date of this Agreement, there is no Software such claim pending or, to the Knowledge of the Company, threatened against the Company or its Subsidiaries, (iii) to the Knowledge of the Company as of the date of this Agreement, except as set forth on Section 3.17 of the Company Disclosure Schedule, no Person is infringing, misappropriating or otherwise violating any Intellectual Property owned by the Company, and (iv) no such claims are pending or licensed to threatened in writing against any Person by the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsits Subsidiaries.
(c) The Company is not a party and its Subsidiaries have taken commercially reasonable steps to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets protect and preserve the confidentiality of all material trade secrets and other material confidential information owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsand/or its Subsidiaries.
(d) The Company owns maintains control of copies of the entire right, title and interest Software included in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for which the Company or its Subsidiaries license from third Persons or otherwise use and documentation (including user guides) reasonably necessary to conduct use such Software. The Company maintains the Business as currently conducted.
(i) No infringement, misappropriation source code for all material proprietary Software developed or violation of any Intellectual Property, or any rights of publicity or privacy relating to created by the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property Company and owned by the Company has been made by or any other Person; of its Subsidiaries (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the “Company has not had notice ofProprietary Software”). The Company Proprietary Software, and, to the Knowledge of Sellerthe Company, there is no basis for, a claim against the material Software included in the Intellectual Property which the Company that the operationsor its Subsidiaries license from third Persons or otherwise use functions substantially in compliance with applicable written, activitiespublished documentation and specifications, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, do not and would not reasonably be expected to have a Company Material Adverse Effect. As used in this Agreement, “Software” means all computer programs, including any and all software implementations of algorithms, models and methodologies whether in source code, object code or other form, software databases and compilations. Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries own, lease or license all Software, hardware, databases, computer equipment and other information technology necessary for the operations of the Company’s and its Subsidiaries’ businesses as currently conducted.
Appears in 2 contracts
Sources: Merger Agreement (Fidelity National Financial, Inc.), Agreement and Plan of Merger (O Charleys Inc)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 4.16(a) of the Acuren Disclosure Schedule sets forth a true, Patent Rights correct and Trademarks (including any assumed or fictitious names used by complete list of all material unregistered Marks included in the Company within the previous two (2) years) owned by or licensed to the CompanyAcuren Intellectual Property.
(b) There Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in an Acuren Material Adverse Effect, (i) an Acuren Entity is no Software owned the sole and exclusive owner of all Acuren Registered Intellectual Property and all other Acuren Intellectual Property (including the Intellectual Property created by or licensed to employees within the Company scope of their employment by the Acuren Entities), free and clear of any Lien thereon (except for mass market Software licensed to any Permitted Lien), (ii) all Acuren Registered Intellectual Property is subsisting and (iii) all issuances and registrations included in the Company that is commercially available Acuren Registered Intellectual Property are valid and subject to “shrink-wrap” enforceable. No prior or “click-through” license agreementscurrent employee or officer or any prior or current consultant or contractor of the Acuren Entities has asserted any ownership in any Acuren Intellectual Property.
(c) The Company Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in an Acuren Material Adverse Effect, an Acuren Entity owns, licenses or otherwise has, and since December 31, 2021, has owned, licensed, or otherwise had, the valid right to use all Intellectual Property used in, or held for use for, the operation of the Acuren Entities’ businesses. Any material Intellectual Property licensed by an Acuren Entity is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or validly licensed to the Company; Acuren Entity pursuant to written, valid agreements. Neither the execution and (iii) delivery of this Agreement nor the consummation of the Mergers or other transactions contemplated by this Agreement will result in the termination or invalidity of any Software, other than market Software agreements pursuant to which the material Intellectual Property is licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsAcuren Entity.
(d) The Company owns the entire rightExcept as has not resulted, title and interest in and towould not reasonably be expected to result, individually or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business aggregate, in an Acuren Material Adverse Effect:
(A) the operation of the Acuren Entities’ respective businesses, as currently conductedconducted and as conducted since December 31, 2021, is not infringing, misappropriating or otherwise violating, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
has not infringed, misappropriated or otherwise violated, (i1) No infringement, misappropriation any Patents or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, Marks of any other Person has occurred or results in (2) any way from the operation of the Business or the use, sale or distribution of any other Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (viB) to the Knowledge since December 31, 2021, there has been no Action instituted or threatened in writing against any Acuren Entity alleging infringement, misappropriation or other violation of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned of another Person or exclusively licensed challenging the ownership, validity or enforceability of any Acuren Intellectual Property;
(ii) (A) no Person is infringing, misappropriating or otherwise violating, or since December 31, 2021, has infringed, misappropriated, or otherwise violated, any Acuren Intellectual Property and (B) since December 31, 2021, no Acuren Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or other violation of any such Acuren Intellectual Property;
(iii) each Acuren Entity takes and has taken commercially reasonable actions to protect the confidentiality of Trade Secrets included in the Acuren Intellectual Property;
(iv) all current and former officers and employees of, and consultants and independent contractors to, the Acuren Entities whose duties to the Acuren Entities reasonably contemplate or contemplated access to Trade Secrets included in the Acuren Intellectual Property have executed a valid and enforceable written agreement with the applicable Acuren Entity agreeing to protect the confidentiality of Trade Secrets included in the Acuren Intellectual Property;
(v) all current and former officers and employees of, and consultants and independent contractors to, the Acuren Entities whose duties to the Acuren Entities reasonably contemplate or contemplated the development of Intellectual Property (other than copyright rights in works of authorship authored by employees within the scope of their employment) have executed a valid and enforceable written agreement with the applicable Acuren Entity that assigns to such Acuren Entity all rights, title and interest in and to any and all Acuren Intellectual Property such Person contributed to the creation or development of, and, to the extent applicable, irrevocably waives such Person’s moral rights in, such Intellectual Property;
(vi) no Acuren Intellectual Property is subject to any Contract containing any covenant or other provision that limits or restricts in any manner, taken as a whole, the ability of the Acuren Entities: (A) to make, use, import, sell, offer for sale or promote any products or services made available by or on behalf of the Acuren Entities, and any products or services currently being developed (or already developed) by or for the Acuren Entities, anywhere in the world; or (B) to Selleruse, exploit, assert or enforce any of the Acuren Intellectual Property anywhere in the world;
(A) each case Acuren Entity takes and has taken commercially reasonable actions to maintain the operation of Acuren Software and Acuren IT Assets, including by implementing written information security policies that comply with applicable Laws, reasonable disaster recovery incident response plans with respect to such Acuren IT Assets, and (B) since December 31, 2021, there has been no failure in, or disruptions of, any Acuren Software or any Acuren IT Assets that has not been fully remedied; and
(A) the Acuren IT Assets are sufficient for the conduct of the businesses of the Acuren Entities, taken as a whole, as currently conducted, (B) no Software that is distributed as Open Source Software is a component of, has been incorporated into, linked to or distributed with any Acuren Software by or on behalf of any Acuren Entity in a manner that would (1) either currently or upon its distribution, require any Acuren Software (in whole or in part) to be licensed, sold or disclosed in source code form, (2) grant the right to make modifications or derivative works of any Acuren Software (in whole or in part), or (3) impose a requirement or condition that any Acuren Software be redistributable at no charge, (C), the Acuren Software does not contain any device or feature that disrupts, disables, or otherwise impairs the functioning of any such Acuren Software (except as could notpart of the intended functionality of such Acuren Software) or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” or other code or routines that permit unauthorized access, use, disablement or erasure of such Acuren Software, Acuren IT Assets or information or other data (or all parts thereof) or other Software or information technology assets of duly authorized users of such Acuren Software, and (D) the Acuren IT Assets have been reasonably maintained and tested for vulnerabilities with necessary patches and updates applied where appropriate.
(e) Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, reasonably be expected to have a in an Acuren Material Adverse Effect, no source code for any Acuren Software (i) has been provided, licensed or made available to any customer, business partner, escrow agent or other Person except to employees and third-party Software developers of an Acuren Entity solely for use, modification, creation of derivative works and/or disclosure in connection with their employment or engagement with such Acuren Entity, or (ii) is subject to any duty or obligation (whether present, contingent, or otherwise) of any Acuren Entity to deliver, license, or make available any such source code to any customer, business partner, escrow agent or other Person.
Appears in 2 contracts
Sources: Merger Agreement (Acuren Corp), Merger Agreement (Acuren Corp)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by Section 3.18(a) of the Company within the previous two (2) years) owned by or licensed Disclosure Letter contains a true, correct and complete list of all issued Patents and pending applications for Patents, registered Trademarks and pending applications to the Companyregister Trademarks, Company Domain Names, registered Copyrights and applications to register Copyrights.
(b) There is no Software owned by or licensed to Section 3.18(b) of the Company except for mass market Software licensed to the Company that is commercially available Disclosure Letter contains a true, correct and subject to complete list of all material Contracts, licenses, sublicenses, assignments and indemnities, other than “shrink-wrap,” or “click-through” or similar license agreements.
(c) The Company is not a party to , standard end-user or distributor license and sale Contracts which and related maintenance and support Contracts entered into in the ordinary course of business, that relate to: (i) any CopyrightsCompany Software (including any delivery, Patent Rights release, copy, license, or Trademarks; disclosure of source code of any Company Software to any third party) necessary to conduct the business of the Acquired Companies as presently conducted or (ii) any Trade Secrets other Company Intellectual Property necessary to conduct the business of the Acquired Companies as presently conducted and owned by or licensed a third party to which any Acquired Company holds a license (collectively, the Company; and (iii) any Software, other than market Software licensed to the “Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsIntellectual Property Agreements”).
(dc) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could notExcept as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) an Acquired Company solely and exclusively owns all right, title and interest in the Company Owned Intellectual Property, free and clear of any Liens (other than Permitted IP Encumbrances) or has a valid right to use any other Intellectual Property used or held for use in the Company’s business, free and clear of any Liens (other than Permitted IP Encumbrances), (ii) the Company Owned Intellectual Property and the rights of the Acquired Companies in Intellectual Property under the Company Intellectual Property Agreements are all those Intellectual Property rights necessary to conduct the business of the Acquired Companies as presently conducted and (iii) the execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the Transactions, do not and will not affect any ownership, license rights or similar rights in and to the Company Intellectual Property.
(d) Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) the business of the Acquired Companies (including the Company Software), as presently conducted, does not, infringe, misappropriate or otherwise violate the Intellectual Property rights of any other Person; (ii) there are no infringement or misappropriation Actions pending with respect to any Company Intellectual Property and (iii) no Person has infringed, misappropriated or otherwise violated, and no Person is currently infringing, misappropriating or otherwise violating, any Company Owned Intellectual Property.
(e) Except as, individually or in the aggregate, have not had, and would not reasonably be expected to have a Company Material Adverse Effect, all employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any Company Owned Intellectual Property have executed a valid and enforceable agreement or are subject to an employment policy granting an assignment in favor of an Acquired Company of all right, title and interest in such material.
(f) Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) except to the extent the disclosure of Know-How included in the Company Owned Intellectual Property has been made pursuant to applicable Law or in accordance with standard industry practice, the Acquired Companies have taken commercially reasonable measures to own and maintain the confidentiality of all Know-How included in the Company Owned Intellectual Property that an Acquired Company has elected to protect as a trade secret, (ii) there has been no breach or violation by any other party to any confidentiality obligations governing the use of such Know-How, (iii) there has been no unauthorized disclosure or use of such Know-How of the Acquired Companies and (iv) the Acquired Companies have taken commercially reasonable steps to prevent the unauthorized disclosure or use of and to otherwise protect and enforce their rights in all such Know-How of the Acquired Companies.
(g) To the knowledge of the Company, the Company owns or has a right to access and use in all material respects all the Company IT Systems, as such Company IT Systems are currently used by the Acquired Companies. The Acquired Companies maintain policies and procedures that protect the confidentiality, integrity and security of the Company IT Systems and the Company Data in accordance in all material respects with generally accepted standards within the information technology industry for companies of comparable size and stage. To the knowledge of the Company, the Company IT Systems (i) are reasonably adequate for the current operation of the Acquired Companies, (ii) are, including in relation to any data stored or processed therein, fully functional in all material respects and no material errors or defects which have not been fully remedied or rectified have been discovered therein, (iii) have not suffered any material security breach or any security breach required to be reported under the Regulation Systems Compliance and Integrity, as adopted by the U.S. Securities and Exchange Commission, since November 3, 2015 and (iv) do not contain any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing, any of the following functions: (A) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed or (B) damaging or destroying any data or file without the user’s consent.
(h) Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, no Open Source Code licensed to any Acquired Company is incorporated into or distributed with any Company Software owned by any Acquired Company in a manner that would require that any such Company Software owned by any Acquired Company to be made available or distributed in source code form.
(i) Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) the Acquired Companies are in, and at all times since January 1, 2014, have been in, compliance with all Company Privacy Policies and applicable Laws concerning the collection, storage, use, transfer, disclosure and other processing and tracking of Personal Data gathered or accessed in the course of their operations, (ii) none of the Acquired Companies has received written notice of any, and to the knowledge of the Company, there is no violation of any such Laws or Company Privacy Policies through the date hereof, (iii) the Acquired Companies are in compliance in all respects with all of their respective contractual commitments with respect to such Personal Data and have commercially reasonable safeguards in place to protect such Personal Data in their possession or control from unauthorized access consistent with such applicable Laws concerning the collection, storage, use, transfer, disclosure and other processing and tracking of Personal Data, Company Privacy Policies and contractual commitments, (iv) there have been no data breaches involving any such Personal Data in the possession of any of the Acquired Companies, and none of the Acquired Companies nor any other Person has made any illegal or unauthorized use or disclosure of such Personal Data that was collected by or on behalf of any of the Acquired Companies and (v) none of the Acquired Companies is subject to any contractual requirements, privacy policies or other legal obligations that, following the Effective Time and as a result of the Transactions, would prohibit the Acquired Companies after the Effective Time from receiving or using Company Data substantially in the manner in which the Acquired Companies receive and use such Company Data immediately prior to the Effective Time.
(j) Except as, individually or in the aggregate, have not had, and would not reasonably be expected to have a Company Material Adverse Effect, the Acquired Companies have all necessary and required rights to license, use, sublicense and distribute all Company Data to conduct the business of the Acquired Companies as presently conducted.
(k) For purposes of this Agreement, the following terms shall have the meanings assigned below:
Appears in 2 contracts
Sources: Merger Agreement (CBOE Holdings, Inc.), Merger Agreement (Bats Global Markets, Inc.)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 3.16(a) of the NV5 Disclosure Schedule sets forth a true, Patent Rights correct and Trademarks (including any assumed or fictitious names used by complete list of all material unregistered Marks included in the Company within the previous two (2) years) owned by or licensed to the CompanyNV5 Intellectual Property.
(b) There Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in a NV5 Material Adverse Effect, (i) a NV5 Entity is no Software owned the sole and exclusive owner of all NV5 Registered Intellectual Property and all other NV5 Intellectual Property (including the Intellectual Property created by or licensed to employees within the Company scope of their employment by the NV5 Entities), free and clear of any Lien thereon (except for mass market Software licensed to any Permitted Lien), (ii) all NV5 Registered Intellectual Property is subsisting and (iii) all issuances and registrations included in the Company that is commercially available NV5 Registered Intellectual Property are valid and subject to “shrink-wrap” enforceable. No prior or “click-through” license agreementscurrent employee or officer or any prior or current consultant or contractor of the NV5 Entities has asserted any ownership in any NV5 Intellectual Property.
(c) The Company Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in a NV5 Material Adverse Effect, a NV5 Entity owns, licenses or otherwise has, and since December 31, 2021, has owned, licensed, or otherwise had, the valid right to use all Intellectual Property used in, or held for use for, the operation of the NV5 Entities’ respective businesses. Any material Intellectual Property licensed by a NV5 Entity is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or validly licensed to the Company; NV5 Entity pursuant to written, valid agreements. Neither the execution and (iii) delivery of this Agreement nor the consummation of the Mergers or other transactions contemplated by this Agreement will result in the termination or invalidity of any Software, other than market Software agreements pursuant to which the material Intellectual Property is licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsNV5 Entity.
(d) The Company owns the entire rightExcept as has not resulted, title and interest in and towould not reasonably be expected to result, individually or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conductedaggregate, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.in a NV5 Material Adverse Effect:
(i) No infringement(A) the operation of the NV5 Entities’ respective businesses, misappropriation as currently conducted and as conducted since December 31, 2021, is not infringing, misappropriating or violation of otherwise violating, and has not infringed, misappropriated or otherwise violated, (1) any Intellectual Property, Patents or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, Marks of any other Person has occurred or results in (2) any way from the operation of the Business or the use, sale or distribution of any other Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (viB) to the Knowledge since December 31, 2021, there has been no Action instituted or threatened in writing against any NV5 Entity alleging infringement, misappropriation or other violation of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned of another Person or exclusively licensed challenging the ownership, validity or enforceability of any NV5 Intellectual Property;
(ii) (A) no Person is infringing, misappropriating or otherwise violating, or since December 31, 2021, has infringed, misappropriated, or otherwise violated, any NV5 Intellectual Property and (B) since December 31, 2021, no NV5 Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or other violation of any such NV5 Intellectual Property;
(iii) each NV5 Entity takes and has taken commercially reasonable actions to protect the confidentiality of Trade Secrets included in the NV5 Intellectual Property;
(iv) all current and former officers and employees of, and consultants and independent contractors to, the NV5 Entities whose duties to the NV5 Entities reasonably contemplate or contemplated access to Trade Secrets included in the NV5 Intellectual Property have executed a valid and enforceable written agreement with the applicable NV5 Entity agreeing to protect the confidentiality of Trade Secrets included in the NV5 Intellectual Property;
(v) all current and former officers and employees of, and consultants and independent contractors to, the NV5 Entities whose duties to the NV5 Entities reasonably contemplate or contemplated the development of Intellectual Property (other than copyright rights in works of authorship authored by employees within the scope of their employment) have executed a valid and enforceable written agreement with the applicable NV5 Entity that assigns to such NV5 Entity all of such Person’s rights, title and interest in and to any and all NV5 Intellectual Property such Person contributed to the creation or development of, and, to the extent applicable, irrevocably waives such Person’s moral rights in, such Intellectual Property;
(vi) no NV5 Intellectual Property is subject to any Contract containing any covenant or other provision that limits or restricts in any manner, taken as a whole, the ability of the NV5 Entities: (A) to make, use, import, sell, offer for sale or promote any products or services made available by or on behalf of the NV5 Entities, and any products or services currently being developed (or already developed) by or for the NV5 Entities, anywhere in the world; or (B) to Selleruse, exploit, assert or enforce any of the NV5 Intellectual Property anywhere in the world;
(A) each case NV5 Entity takes and has taken commercially reasonable actions to maintain the operation of NV5 Software and NV5 IT Assets, including by implementing written information security policies that comply with applicable Laws, reasonable disaster recovery incident response plans with respect to such NV5 IT Assets, and (B) since December 31, 2021, there has been no failure in, or disruptions of, any NV5 Software or any NV5 IT Assets that has not been fully remedied; and
(viii) (A) the NV5 IT Assets are sufficient for the conduct of the businesses of the NV5 Entities, taken as a whole, as currently conducted, (B) no Software that is distributed as “open source software” or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL) or GNU Affero General Public License (AGPL) (collectively, “Open Source Software”) is a component of, has been incorporated into, linked to or distributed with any NV5 Software by or on behalf of any NV5 Entity in a manner that would (1) either currently or upon its distribution, require any NV5 Software (in whole or in part) to be licensed, sold or disclosed in source code form, (2) grant the right to make modifications or derivative works of any NV5 Software (in whole or in part), or (3) impose a requirement or condition that any NV5 Software be redistributable at no charge, (C) the NV5 Software does not contain any device or feature that disrupts, disables, or otherwise impairs the functioning of any such NV5 Software (except as could notpart of the intended functionality of such NV5 Software) or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” or other code or routines that permit unauthorized access, use, disablement or erasure of such NV5 Software, NV5 IT Assets or information or other data (or all parts thereof) or other Software or information technology assets of duly authorized users of such NV5 Software, and (D) the NV5 IT Assets have been reasonably maintained and tested for vulnerabilities with necessary patches and updates applied where appropriate.
(e) Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, reasonably be expected to have in a NV5 Material Adverse Effect, no source code for any NV5 Software (i) has been provided, licensed or made available to any customer, business partner, escrow agent or other Person except to employees and third-party Software developers of a NV5 Entity solely for use, modification, creation of derivative works and/or disclosure in connection with their employment or engagement with such NV5 Entity, or (ii) is subject to any duty or obligation (whether present, contingent, or otherwise) of any NV5 Entity to deliver, license, or make available any such source code to any customer, business partner, escrow agent or other Person.
Appears in 2 contracts
Sources: Merger Agreement (Acuren Corp), Merger Agreement (Acuren Corp)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Section 3.18(a) of the Company Disclosure Letter contains a true, correct and complete list and description of all issued Patents and pending applications for Patents, registered Trademarks and pending applications to register Trademarks, material unregistered Trademarks, Proprietary Software, Company Domain Names and registered Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by in each case included in the Company within Owned Intellectual Property. All registration, renewal and maintenance fees and taxes due and payable on or before the previous two (2date hereof in respect of each of the applications and registrations listed on Section 3.18(a) years) owned by or licensed to of the CompanyCompany Disclosure Letter have been paid.
(b) There is no Software owned by Except as, individually or licensed in the aggregate, has not been, and would not reasonably be expected to be, materially adverse to the Acquired Companies, taken as a whole, an Acquired Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company exclusively owns the entire all right, title and interest in and toto the Company Owned Intellectual Property, free and clear of any Liens (other than Permitted IP Encumbrances), and such rights are valid, subsisting and to the knowledge of the Company, enforceable, or (ii) has the a valid and enforceable right to use, the use any other material Intellectual Property and Software used or held for use in the Business as currently conductedbusiness of the Acquired Companies, free and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation clear of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any Liens (other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could notthan Permitted IP Encumbrances). Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have have, a Company Material Adverse Effect, the Company Owned Intellectual Property and the rights of the Acquired Companies in Intellectual Property under the Company Intellectual Property Agreements collectively constitute all Intellectual Property rights necessary to conduct the business of the Acquired Companies as presently conducted. The Acquired Companies are in material compliance with all contractual obligations relating to the protection of such of the Intellectual Property it uses pursuant to the Company Intellectual Property Agreements. The consummation of the Transactions will not materially alter or impair any rights of the Acquired Companies to any Company Owned Intellectual Property.
(c) The business of the Acquired Companies (including the Company Software), as presently conducted, and as has been conducted since December 31, 2017, and the products and services of the Acquired Companies do not infringe, misappropriate or otherwise violate the Intellectual Property rights of any other Person, except where such infringement, misappropriation or other violation, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect. There are no infringement or misappropriation Actions pending or, to the knowledge of the Company, threatened with respect to any Company Owned Intellectual Property, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
(d) To the knowledge of the Company, no Person has infringed, misappropriated or otherwise violated, and no Person is currently infringing, misappropriating or otherwise violating, any Company Owned Intellectual Property, except as, individually or in the aggregate, has not been, and would not reasonably be expected to be, materially adverse to the Acquired Companies, taken as a whole.
(e) No present or former officer, director, employee, agent, outside contractor, or consultant of the Acquired Companies holds any right, title or interest, directly or indirectly, in whole or in part, in or to any material Company Owned Intellectual Property. All current and former employees, agents, consultants or contractors who have been involved in the creation, development, or modification of any material Intellectual Property for or on behalf of an Acquired Company have executed and delivered written agreements that assign to such Acquired Company all rights to such Intellectual Property developed by them in the course of performing their services for such Acquired Company or are otherwise subject to a valid and enforceable employment policy granting such an assignment to such Acquired Company of such Intellectual Property. To the knowledge of the Company, there has been no breach or violation by any other party to any such agreement, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
(f) The Acquired Companies have taken commercially reasonable measures to maintain the confidentiality and ownership of the Know-How included in the Company Owned Intellectual Property, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
(g) The Company owns or has a right to access and use in all material respects the Company IT Systems, as such Company IT Systems are currently used and contemplated to be used by the Acquired Companies. Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, the Acquired Companies maintain commercially reasonable policies and procedures that protect the operation, confidentiality, integrity and security of the Company IT Systems and any Software that is involved in the collection and/or processing of data, including Personal Data. The Company IT Systems are sufficient and adequate in all material respects for the current operation of the Acquired Companies, and do not contain any material faults, viruses or hardware components designed to permit unauthorized access to or disable or otherwise harm any Company IT Systems (including Personal Data on such Company IT Systems), except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect. Since December 31, 2017, there has been no material failure, vulnerability or defect of the Company IT Systems (including with respect to Personal Data) which has not been fully resolved, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect. Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, each Acquired Company is, and has at all times been, in compliance with all applicable Data Protection Requirements in all applicable jurisdictions.
(h) Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, there is no Open Source Code licensed to any of the Acquired Companies that is incorporated into or distributed with any Proprietary Software which may (A) require compulsory disclosure, licensing, or distribution of any source code for any Proprietary Software, (B) otherwise impose any material limitation, restriction or condition on the right or ability of any Acquired Company to use or distribute any Proprietary Software or (C) as a result of the use by any Acquired Company of such Open Source Code, grant or purport to grant to any third party any rights or immunities under any Company Owned Intellectual Property.
Appears in 2 contracts
Sources: Merger Agreement (National General Holdings Corp.), Merger Agreement (Allstate Corp)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Section 3.18(a) of the Company Disclosure Letter contains a true, correct and complete list and description of all issued Patents and pending applications for Patents, registered Trademarks and pending applications to register Trademarks, Company Domain Names and registered Copyrights and applications to register Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by in each case included in the Company within Owned Intellectual Property. All registration, renewal and maintenance fees and taxes due and payable on or before the previous two Closing Date in respect of each of the applications and registrations listed on Section 3.18(a) of the Company Disclosure Letter have been paid.
(2b) yearsSection 3.18(b) of the Company Disclosure Letter contains a true, correct and complete list (showing in each case any owner, licensor or licensee) of all material Software necessary to the conduct of the business of the Acquired Companies as presently conducted that is owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company Acquired Companies, except for mass market Software licensed to the Company Acquired Companies that is commercially available and subject to “shrink-wrap,” or “click-through” or similar license agreementsagreements or is embedded Software in hardware or equipment of the Acquired Companies.
(c) The Other than “shrink-wrap,” “click-through” or similar license agreements, standard end-user or distributor license and sale Contracts and related maintenance and support Contracts, in each case entered into in the ordinary course of business consistent with past practice, Section 3.18(c) of the Company is not Disclosure Letter contains a party to Contracts which true, correct and complete list and description of all material Contracts, licenses, sublicenses, assignments and indemnities (collectively, the “Company Intellectual Property Agreements”) that relate to: (i) any CopyrightsCompany Software (including any delivery, Patent Rights license, or Trademarksdisclosure of source code of any Company Software to any third party); or (ii) any Trade Secrets other material Intellectual Property necessary to conduct the business of the Acquired Companies as presently conducted and owned by or licensed a third party to the Company; and (iii) which any Software, other than market Software licensed to the Acquired Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsholds a license.
(d) The An Acquired Company exclusively owns the entire all right, title and interest in the Company Owned Intellectual Property, free and toclear of any Liens (other than Permitted IP Encumbrances), or has a valid right to use any other material Intellectual Property used or held for use in the business of the Acquired Companies, free and clear of any Liens (other than Permitted IP Encumbrances). The Company Owned Intellectual Property and the rights of the Acquired Companies in Intellectual Property under the Company Intellectual Property Agreements collectively constitute all material Intellectual Property rights necessary to conduct the business of the Acquired Companies as presently conducted. The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the Transactions, do not and will not affect any ownership, license rights or similar rights in and to the Company Intellectual Property.
(e) The business of the Acquired Companies (including the Company Software), as presently conducted, does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any other Person. There are no infringement or misappropriation Actions pending or, to the knowledge of the Company, threatened with respect to any Company Intellectual Property.
(f) To the knowledge of the Company, no Person has infringed, misappropriated or otherwise violated, and no Person is currently infringing, misappropriating or otherwise violating, any material Company Owned Intellectual Property.
(g) All employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any Intellectual Property for or on behalf of an Acquired Company have executed a valid and enforceable right agreement or are subject to usean employment policy granting an effective assignment in favor of an Acquired Company of all right, title and interest in such material. To the knowledge of the Company, there has been no breach or violation by any other party to any such agreement.
(h) Except to the extent the disclosure of Know-How included in the Company Owned Intellectual Property has been made pursuant to applicable Law or in accordance with standard industry practice, the Acquired Companies have taken commercially reasonable measures to maintain the confidentiality of the Know-How included in the Company Owned Intellectual Property and Software used in that are trade secrets or confidential or proprietary information. To the Business as currently conductedknowledge of the Company, and to there has been no unauthorized disclosure or use of Know-How of the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conductedAcquired Companies that are trade secrets or confidential or proprietary information.
(i) No infringementTo the knowledge of the Company, misappropriation the Company owns or violation has a right to access and use in all material respects the Company IT Systems, as such Company IT Systems are currently used by the Acquired Companies. The Acquired Companies maintain reasonable policies and procedures that protect the confidentiality, integrity and security of any Intellectual Propertythe Company IT Systems and the Company Data. To the knowledge of the Company, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from Company IT Systems (i) are reasonably adequate for the current operation of the Business or the useAcquired Companies, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) are fully functional in all material respects and no claim of any infringementmaterial errors or defects which have not been fully remedied or rectified have been discovered therein, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of have not suffered any Intellectual Property owned by the Company has been made by any other Person; security breach and (iv) no Proceedings do not contain any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus” or “worm” (as such terms are pending orcommonly understood in the software industry) or any other code designed or intended to have, to or capable of performing, any of the Knowledge of Sellerfollowing functions: (A) disrupting, threatened that challenge disabling, harming or otherwise impeding in any manner the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice operation of, and, to the Knowledge of Seller, there is no basis foror providing unauthorized access to, a claim against computer system or network or other device on which such code is stored or installed; or (B) damaging or destroying any data or file without the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and user’s consent.
(vij) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could notExcept as, individually or in the aggregate, has not had, and would not reasonably be expected to have have, a Company Material Adverse Effect, there is no Open Source Code licensed to any of the Acquired Companies that is incorporated into or distributed with any Software included in the Company Owned Intellectual Property which may (A) require compulsory disclosure or licensing to any third party of any source code with which such Open Source Code is used or compiled, (B) otherwise impose any material limitation, restriction or condition on the right or ability of any Acquired Company to use or distribute any Software included in the Company Owned Intellectual Property or (C) as a result of the use by any of Acquired Company of such Open Source Code, grant or purport to grant to any third party any rights or immunities under any Company Owned Intellectual Property. With respect to all Software source code licensed to any Acquired Company that is material to any of the operations of any Acquired Company, such source code is either currently in the possession of an Acquired Company or currently held by an escrow agent subject to an agreement with an Acquired Company whereby such Acquired Company may obtain a copy of such source code upon the occurrence of customary release events, and Section 3.18(j) of the Company Disclosure Letter lists each such agreement with an escrow agent.
(k) The Acquired Companies provide all required Company Privacy Policies in compliance with Privacy Requirements and are in compliance with all Company Privacy Policies and applicable Privacy Requirements. None of the Acquired Companies has received written notice of any, and, to the knowledge of the Company, there is no, material violation of any such Privacy Requirements or Company Privacy Policies through the date hereof. The Acquired Companies are in material compliance in all respects with all of their respective contractual commitments with respect to Personal Data. The Acquired Companies have reasonable safeguards in place and maintain a written information security program that includes administrative, technical and physical safeguards to protect Personal Data in their possession or control from unauthorized access and against reasonably anticipated threats or hazards to the privacy, security, integrity and confidentiality consistent with applicable Laws concerning the collection, storage, use, transfer, disclosure and other processing and tracking of Personal Data, Company Privacy Policies and contractual commitments.
(l) There have been no data breaches involving any Personal Data in the possession of any of the Acquired Companies, and none of the Acquired Companies nor any other Person has made any illegal or unauthorized use or disclosure of Personal Data that was collected by or on behalf of any of the Acquired Companies. Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, none of the Acquired Companies is subject to any contractual requirements, privacy policies or other legal obligations that, following the Effective Time and as a result of the Transactions, would prohibit the Acquired Companies after the Effective Time from receiving or using Company Data substantially in the manner in which the Acquired Companies receive and use such Company Data immediately prior to the Effective Time.
(m) Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, the Acquired Companies have all necessary and required rights to license, use, sublicense and distribute the Company Data to conduct the business of the Acquired Companies as presently conducted.
(n) For purposes of this Agreement, the following terms shall have the respective meanings assigned below:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Infinity Property & Casualty Corp), Agreement and Plan of Merger (KEMPER Corp)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights The Target Company and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns Subsidiaries either validly own the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software actually used in the Business conduct of their business as currently conducted, free and clear of any Encumbrances other than a Permitted Encumbrance, or have a valid and enforceable contractual right or license to use the same in the conduct of their business as currently conducted. Such Intellectual Property and Software, and the names of the corresponding owners and applicants, is contained in Schedule 5.13(a). All material transactions relating to them have been registered within applicable time limits;
(b) All applications, filings, registrations and renewals for the Intellectual Property and Software have been made and to the Knowledge of Seller there is no other Intellectual Property necessary Controlling Shareholder's Knowledge, all Taxes, fees or duties due for payment at the Company to conduct the Business as currently conducted.date hereof have been paid in this respect;
(ic) No infringement, misappropriation None of the operations of the Target Company and/or the Subsidiaries infringes or violation of any Intellectual Property, or any is likely to infringe the rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person Person. No claim has occurred been made by a third party which alleges that the operations of a Target Company and/or a Subsidiary infringe, or results in any way from are likely to infringe, the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect which otherwise disputes the right of a Target Company and/or a Subsidiary to use the Intellectual Property and Software owned or used by the Target Company and by the Subsidiaries and/or the Controlling Shareholder's Knowledge, no circumstances are likely to give rise to such claims;
(d) To the Controlling Shareholder's Knowledge and subject to the provisions of Schedule 5.13(d), there exists no infringement by any Person of the operation Intellectual Property and Software of the Business; Target Company and the Subsidiaries;
(iiie) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings No proceedings are pending ornor, to the Knowledge of SellerControlling Shareholder's Knowledge, have any been threatened in writing against the Target Company and/or the Subsidiaries that challenge the validity, ownership or right to use of any Intellectual Property and Software owned or used by the Company; (v) the Company has not had notice of, them and, to the Knowledge of SellerControlling Shareholder's Knowledge, there is no basis forfor such proceedings; and
(f) Except as set forth in Schedule 5.13 (f), a claim against the Target Company that and/or the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute Subsidiaries have not granted licences on any Intellectual Property or any Software owned or used by them other than, in the ordinary course of business, to their customers. Where said Target Company and/or Subsidiaries benefit from such rights licences, said licences have been granted under terms that are not contrary to the corporate interests of the Target Company and/or the Subsidiaries and do not constitute abnormal management decisions, and the Target Company and/or Subsidiaries are not in material breach of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effecttheir obligations thereunder.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by Except as would not reasonably be expected to materially impact the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: its Subsidiaries, (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to either the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The a Subsidiary of the Company owns the entire right, title and interest in and toowns, or has the valid and enforceable right is licensed or otherwise possesses adequate rights to use, the Intellectual Property and Software used in connection with the Business business of the Company and its Subsidiaries as currently conducted, conducted and to the Knowledge of Seller there is (ii) no other Intellectual Property necessary for the Company Person holds any right, title or interest in or to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or exclusively licensed to (or purported to be owned by or exclusively to licensed to) the Company; Company or its Subsidiaries (ii) no claim collectively, the "Company IP"). The consummation of the Merger and the other transactions contemplated hereby do not and will not result in any material adverse change or material loss of any infringementrights in any Company IP, misappropriation, violation or dilution and will not result in the creation of any Intellectual Property Liens (other than Permitted Liens) with respect to any Company IP.
(b) Except as would not reasonably be expected to materially impact the Company or any such rights of any other Person has been made or asserted in respect its Subsidiaries, the conduct of the operation of business as currently conducted, and as conducted in the Business; past three (iii3) no claim of invalidity of any Intellectual Property owned years, by the Company has been made by and its Subsidiaries does not infringe or otherwise violate any other Person; (iv) 's Intellectual Property, and, as of the date of this Agreement, there is no Proceedings claim to the contrary pending or to the knowledge of the Company threatened against the Company or its Subsidiaries. To the knowledge of the Company as of the date of this Agreement, no Person is infringing or otherwise violating any Company IP, and no claims alleging the contrary are pending or, to the Knowledge of Seller, or threatened that challenge the validity, ownership or use of against any Intellectual Property owned Person by the Company; Company or its Subsidiaries.
(vc) Section 3.16(c) of the Company has not had notice ofDisclosure Letter contains a complete and correct list, as of the date of this Agreement, of all material registrations and applications for registration included in the Company IP (collectively, the "Registered Company IP"). The Company or its Subsidiaries have paid all maintenance fees, filed all statements of use and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes knowledge of the Business infringeCompany, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) disclosed to the Knowledge of SellerUnited States Patent and Trademark Office, no Person infringes, misappropriates or violates United States Copyright Office and any Intellectual Property owned or exclusively licensed by or analogous Governmental Entity any information required to Sellerbe disclosed under applicable Law, in each case except as could notreasonably necessary to maintain and protect the material Registered Company IP.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all Company IP is valid and enforceable, and except for office actions arising in the normal course of prosecution there are no claims pending or, to the Company's knowledge, threatened that challenge the scope, ownership, validity, or enforceability of any Company IP.
(e) No trade secret owned by the Company or any of its Subsidiaries and material to their respective businesses has been authorized by the Company or any of its Subsidiaries to be disclosed or, to the knowledge of the Company, has been disclosed by the Company or any of its Subsidiaries to any Person other than pursuant to written non-disclosure agreements restricting the disclosure and use of such material trade secret. The Company and its Subsidiaries have taken commercially reasonable security measures to protect the confidentiality of all the material information that derives its value from its confidentiality included in the Company IP.
(f) The Company maintains control of copies of the Software that the Company or its Subsidiaries license or otherwise use and documentation (including user guides) reasonably necessary to use such Software, and the Company maintains control over the use of source code and/or such other documentation (including user guides and specifications) for all material Software which is owned by the Company or any of its Subsidiaries ("Company Proprietary Software") reasonably necessary to use, maintain and modify the Company Proprietary Software. The Company Proprietary Software, and, to the knowledge of the Company, the material Software that the Company or its Subsidiaries license or otherwise use, functions substantially in compliance with applicable written, published documentation and specifications, except in each case as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect.. The IT Assets are sufficient in all material respects for the conduct of the business of the Company and its Subsidiaries as currently conducted Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Software owned by any other Person has been incorporated into any Company Proprietary Software in a manner that would reasonably be expected to (i) require any Company Proprietary Software (in whole or in material part) to be licensed, sold or disclosed, (ii) grant the right to decompile, disassemble or reverse engineer the source code of any Company Proprietary Software (in whole or in material part) or (iii) limit the ability to charge license fees or otherwise seek compensation in connection with the licensing or distribution of any Company Proprietary Software (in whole or in material part). As used in this Agreement, "Software" means all computer programs, including any and all software implementations of algorithms, models and methodologies whether in source code or object code form, software databases and compilations. As used in this Agreement, "IT Assets" means computers, servers, workstations, routers, hubs, switches, data communications lines, and all other information technology equipment, and all associated documentation owned by the Company or its Subsidiaries or licensed or leased by the Company or its Subsidiaries pursuant to written agreement (excluding any public networks)/
Appears in 1 contract
Sources: Merger Agreement (Cigna Corp)
Intellectual Property; Software. Other than (a) (i) Each of the Company and its Subsidiaries owns, or possesses adequate licenses or other valid rights to use, all existing United States and foreign patents, trademarks, trade names, service marks, domain names, copyrights and software and all applications therefor that are material to its business as currently conducted (the "Company Intellectual Property Rights") and a true and complete list of all Company Intellectual Property Rights is set forth on Section 3.16 of the Company Disclosure Schedule 5.12:
other than unregistered copyrights and trademarks, service marks and trade names; (aii) There all Company Intellectual Property Rights are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used either owned by the Company within or its Subsidiaries free and clear of all Liens or are used pursuant to a license agreement or are otherwise being validly used; (iii) each such license agreement is valid and enforceable and in full force and effect; (iv) neither the previous two Company nor any of its Subsidiaries is in default under any such license agreement in any material respect and, to the knowledge of the Company, no corresponding licensor is in default thereunder in any material respect; (2v) years) no Company Intellectual Property Right that is owned by the Company or licensed any Subsidiary infringes or otherwise conflicts with any material right of any Person; (vi) there is no pending or, to the knowledge of the Company, threatened litigation, adversarial proceeding, administrative action or other challenge or claim relating to any Company Intellectual Property Right that is owned by the Company or any Subsidiary; (vii) there is no outstanding order of a governmental or regulatory authority relating to any Company Intellectual Property Right; (viii) to the knowledge of Company, there is currently no infringement by any person of any Company Intellectual Property Right; and (ix) the Company Intellectual Property Rights owned, used or possessed by the Company and its Subsidiaries are sufficient and adequate to conduct the business of the Company and its Subsidiaries in all material respects as such business is currently conducted.
(b) There is no Software owned by or licensed The Company and its Subsidiaries have taken reasonable steps in their reasonable business discretion to protect, maintain and safeguard the Company except Intellectual Property Rights, including any Company Intellectual Property Rights for mass market Software licensed to which improper or unauthorized disclosure would impair its value or validity, and have executed and required nondisclosure agreements and made any required filings and registrations in connection with the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsforegoing.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to Conduct of the Company; and (iii) any Software, other than market Software licensed to business of the Company that is commercially available and subject to “shrink-wrap” its Subsidiaries as now conducted does not, infringe any valid patents, trademarks, trade names, service marks or “click-through” license agreementscopyrights of any third party. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of any Company Intellectual Property Rights.
(d) The Neither the Company owns nor any of its Subsidiaries has licensed (or otherwise entered into any agreement permitting) any Person to use or market any of the entire right, title and interest in and to, or has the valid and enforceable right to use, the Company Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conductedRights.
(ie) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to The representations and warranties in this Section 3.16 are the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been sole and exclusive representations and warranties made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, with respect to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Company Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; Rights and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectintellectual property matters.
Appears in 1 contract
Intellectual Property; Software. Other than (i) Each of the Company and its subsidiaries owns, or possesses adequate licenses or other valid rights to use, all existing United States and foreign patents, trademarks, trade names, service marks, copyrights, trade secrets and applications therefor that are material to its business as set forth on Schedule 5.12:
currently conducted (athe "Company Intellectual Property Rights"); (ii) There all Company Intellectual Property Rights are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used either owned by the Company within the previous two or its subsidiaries free and clear of all material liens and encumbrances or are used pursuant to a license agreement; (2iii) years) owned by or licensed to the knowledge of the Company, each such license agreement is valid and enforceable and in full force and effect; (iv) neither the Company nor its subsidiaries is in default thereunder in any material respect, and to the knowledge of the Company, no corresponding licensor is in default thereunder in any material respect; (v) to the knowledge of the Company, none of the Company Intellectual Property Rights infringes or otherwise conflicts with any material right of any person; (vi) there is no pending or, to the knowledge of the Company, threatened (in writing) litigation, adversarial proceeding, administrative action or other material challenge or claim relating to any Company Intellectual Property Rights; (vii) there is no outstanding order of a Governmental Authority relating to any Company Intellectual Property Rights; (viii) to the knowledge of Company, there is currently no infringement by any person of any Company Intellectual Property Rights; and (ix) the Company Intellectual Property Rights owned, used or possessed by the Company and its subsidiaries is sufficient and adequate to conduct the business of the Company and the Company Intellectual Property Rights in all material respects as such business is currently conducted.
(b) There is no Software owned by or licensed The Company and its subsidiaries have taken reasonable steps to protect, maintain and safeguard the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conductedRights, including any Company Intellectual Property Rights for which improper or unauthorized disclosure would impair its value or validity, and have executed and required nondisclosure agreements and made any required filings and registrations in connection with the foregoing, except, in each case, where the failure to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation take such steps or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company actions has not had notice of, and, and would not reasonably be expected to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could nothave, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) The conduct of the business of the Company and its subsidiaries as now conducted does not, to the Company's knowledge, infringe any valid patents, trademarks, trade names, service marks or copyrights of others in any material respect. The consummation of the transactions contemplated hereby will not result in the loss or impairment of any Company Intellectual Property Rights.
(d) To the knowledge of the Company, all material third party software currently used by the Company and its subsidiaries is Year 2000 Compliant. For
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsEach of the Company and its subsidiaries owns or possesses adequate licenses or other valid rights (the “Company Intellectual Property Rights”) to use all existing United States and foreign patents, Patent Rights trademarks, trade names, service marks, copyrights, trade secrets and Trademarks applications therefor (including any assumed “Intellectual Property” ) owned or fictitious names used by the Company within and its subsidiaries in each case as such Company Intellectual Property Rights are used in their respective businesses as currently conducted, except where the previous two (2) years) failure to own or possess valid rights to use such Company Intellectual Property Rights would not reasonably be expected to be material to the Company and its subsidiaries taken as a whole. The Company Intellectual Property Rights owned by or licensed by the Company and its subsidiaries, or which the Company otherwise has the right to use, constitute all of the Companymaterial Intellectual Property rights necessary for the conduct of the business of the Company and its subsidiaries as such business is currently conducted.
(b) There is are no Software owned pending or threatened material claims by any third party alleging infringement, dilution or licensed to misappropriation by the Company except for mass market Software licensed to or any of its subsidiaries of any intellectual property of any third party, and neither the Company that is commercially available and subject to “shrink-wrap” nor any of its subsidiaries has received any written notice or “click-through” license agreements.
(c) The claim challenging the validity or enforceability of any of the Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to Intellectual Property Rights. To the knowledge of the Company; and (iii) any Software, other than market Software licensed to neither the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property products owned by the Company has been made by or any other Person; (iv) no Proceedings are pending or, to of its subsidiaries nor the Knowledge conduct of Seller, threatened that challenge the validity, ownership or use business of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute and its subsidiaries materially infringes any Intellectual Property or any such intellectual property rights of any other Person; and (vi) third party. Neither the Company nor any of its subsidiaries has made any material claim of a violation or infringement by others of its rights to or in connection with the Knowledge Company Intellectual Property Rights. To the knowledge of Sellerthe Company, no Person infringesperson is infringing, misappropriates diluting or violates misappropriating any Company Intellectual Property owned or exclusively licensed Rights and the execution and delivery of this Agreement and the consummation of the transactions contemplated by or to Seller, in each case except as could not, individually or this Agreement shall not result in the aggregate, loss or reduction in scope of any Company Intellectual Property Rights that would reasonably be expected to be material to the Company and its subsidiaries taken as a whole. The Company and its subsidiaries have a Material Adverse Effecttaken commercially reasonable actions required to protect and preserve, and maintain the validity and effectiveness of, all material Company Intellectual Property Rights, including without limitation paying all necessary fees related to the registration, maintenance and renewal of the Company Intellectual Property Rights.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Smith International Inc)
Intellectual Property; Software. Other than (a) Section 3.14(a) of the Disclosure Schedule sets forth true, complete and correct lists of the following categories of all Intellectual Property belonging to the Company or to its Subsidiaries and used in or necessary for the conduct of the business of the Company and each of its Subsidiaries, as currently conducted: (i) all patents and pending patent applications; (ii) all trademark registrations (including, without limitation, Internet domain registrations) and pending applications; and (iii) all the Proprietary Products. The Company has the full right to prosecute all pending applications for Intellectual Property set forth on Schedule 5.12:
(aSection 3.14(a) There are no Copyrightsof the Disclosure Schedule. The Company has the full and sole right to sell, Patent Rights license, transfer, convey, use, and Trademarks (including any assumed or fictitious names used by otherwise exploit all Intellectual Property set forth on Section 3.14(a) of the Company within the previous two (2) years) owned by or licensed to the CompanyDisclosure Schedule, free and clear of all Liens.
(b) There is no Software owned by or licensed Section 3.14(b) of the Disclosure Schedule set forth a true, complete and correct list of all Third Parties Components, Third Party Distributed Products and material Licensed Intellectual Property, including their licensors other than “off the shelf” products that are generally available to the Company except public on standard terms and conditions. Except for mass market Software licensed to the Third Parties Components, the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: its Subsidiaries (i) any Copyrights, Patent Rights have a valid copyright in the Proprietary Products and the Proprietary Products are original works of authorship or Trademarksderivative works; (ii) any Trade Secrets owned by own or licensed have the fully paid irrevocable rights to distribute copies of, license, transfer, assign, use, and otherwise exploit all of the CompanyProprietary Products in the manner currently conducted in the business of the Company and its Subsidiaries, free and clear of all Liens or licenses (other than non-exclusive licenses granted to customers in the ordinary course of business); and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns own the entire right, title and interest in and any Intellectual Property that attached to, or subsisted in, the Proprietary Products as a result of their development by or for the Company or its Subsidiaries, free and clear of all Liens or licenses (other than non-exclusive licenses granted to customers in the ordinary course of business). The Proprietary Products do not and will not infringe or misappropriate any Intellectual Property of any third party. Neither the Company nor any Subsidiary has received notice of any such claim of infringement or misappropriation (including any invitation to license or cease using any Intellectual Property). The development, support, maintenance, and distribution of the Proprietary Products does not and will not, as currently conducted, breach any covenant, confidentiality agreement or other agreement of the Company or its Subsidiaries. Neither the Company nor any Subsidiary is obligated to support or maintain any of the Proprietary Products without receiving a periodic payment to the Company for such services. When delivered to customers by the Company, the Proprietary Products did not contain any shutdown device, virus, lock, worm, or any other code or device designed to stop their operation or erase or alter data or programs without the intervention of the user, except for commercially reasonable devices (such as encrypted license keys) designed to restrict access to authorized users for the duration of the license.
(c) All licenses granted to the Company for use of the Licensed Intellectual Property are valid, enforceable and, except as set forth in Section 3.14(c) of the Disclosure Schedule, will not be terminated by the transactions contemplated by this Agreement. All such licenses permit the use (including distribution) made by the Company or its Subsidiaries of the relevant Licensed Intellectual Property as used in or necessary for the conduct of the business of the Company and each of its Subsidiaries, as currently conducted. Neither the Company nor the Subsidiaries are in breach of any agreement related to the Licensed Intellectual Property.
(d) To the Knowledge of the Company, in running its service activity, the Company and/or its Subsidiaries do not (and have not) infringe(d) or misappropriate(d) any Intellectual Property of any third party, nor do they (or have they) breach(ed) any covenant, confidentiality agreement or other agreement of the Company or its Subsidiaries. The Company and/or its Subsidiaries own, or have the valid and enforceable right to use, the all Intellectual Property and Software used in the Business business of the Company and its Subsidiaries as currently conductedconducted and, except as set forth in Section 3.14(d) of the Disclosure Schedule, such rights will not be affected by the transactions contemplated by this Agreement.
(e) The Company or its Subsidiaries are in material compliance with all Legal Requirements (including payment of filing, examination and maintenance fees) relating to the registered Intellectual Property set forth on Section 3.14(a). None of it has expired or been cancelled or abandoned.
(f) There is no pending or, to the Knowledge of Seller the Company and its Subsidiaries, threatened (and at no time within the two years prior to the date of this Agreement has there been pending any) material suit, arbitration or other adversarial proceeding before any court, government agency or arbitral tribunal or in any jurisdiction challenging the ownership, validity, enforceability or registerability of any of the Intellectual Property set forth on Section 3.14(a), or the Company’s or its Subsidiaries’ use of the Licensed Intellectual Property. Except as set forth on Section 3.14(f) of the Disclosure Schedule, neither the Company nor its Subsidiaries are a party to any settlements, covenants not to ▇▇▇, consents, decrees, stipulations, judgments or orders resulting from suits, actions or similar legal proceedings which permit third parties to use any of the Intellectual Property set forth on Section 3.14(a) or restrict the Company’s or any Subsidiary’s use of the Licensed Intellectual Property.
(g) To the Knowledge of the Company, except for the Intellectual Property set forth on Section 3.14(a), the Licensed Intellectual Property, methods and processes in the public domain and unregistered copyrights and trades secrets owned by the Company, there is no other Intellectual Property necessary for in order to manufacture, assemble, test, operate, license, or support the Proprietary Products.
(h) The Company and its Subsidiaries have taken reasonable measures to protect the proprietary nature of all confidential information included in the Intellectual Property set forth on Section 3.14(a) of the Disclosure Schedule or the Licensed Intellectual Property that are material to the business of the Company to conduct the Business and its Subsidiaries as currently conducted. No intellectual property misappropriation, infringement, dilution or violation suits, arbitrations or other adversarial proceedings have been brought before any court, government agency or arbitral tribunal against any third party by the Company or its Subsidiaries which remain unresolved. Other than pursuant to a written nondisclosure agreement, to the Knowledge of the Company and its Subsidiaries, there has been no disclosure to any third party of any material confidential information or trade secrets related to any Proprietary Product.
(i) No infringement, misappropriation or violation All employees of the Company and its Subsidiaries who have made material contributions to the development of any Proprietary Product have signed confidentiality and assignment of proprietary rights agreements substantially in one or more of the forms attached to Section 3.14(i) of the Disclosure Schedule. All consultants and independent contractors who have made material contributions to the development of any Propriety Product have signed confidentiality agreements similar to those so signed by employees of the Company and have assigned to the Company or one or more of its Subsidiaries all of their right, title and interest in and to the portions of such Proprietary Product developed by them in the course of their work or have granted irrevocable fully paid licenses to the Company or one or more of its Subsidiaries for the life of the Intellectual Property licensed. Assignments of the U.S, patents and patent applications listed in Section 3.14(a) of the Disclosure Schedule to the Company or one or more of its Subsidiaries have been duly executed and filed with the United States Patent and Trademark Office.
(j) The Company, directly or through its Subsidiaries, is in actual possession of or has necessary control over: (i) the source code and object code and all related materials for each computer program included in Proprietary Products; and (ii) the object code and, to the extent required for the use of the Software as currently used in the business of the Company or as currently offered to the Company’s customers or potential customers, the source code, for each computer program included in the Licensed Intellectual Property. The Company, directly or through its Subsidiaries, is in possession of or has necessary control over all documentation (including, without limitation, all related engineering specifications, program flow charts, installation and user manuals) and know-how required for the use, development, support or maintenance of the Software as currently used, or that is being designed and/or developed, by the Company or as currently offered to the Company’s customers or potential customers.
(k) Except as set forth on Section 3.14(k) of the Disclosure Schedule, neither the Company nor its Subsidiaries have granted or are obligated to grant access to any third party to any of its source code (including, without limitation, any conditional right to access or any escrow arrangement for the storage and conditional release of any of its source code).
(l) None of the Proprietary Products constitutes or is derived from any open source computer code which requires any portion of the Proprietary Product code other than that open source computer code to be distributed subject to the terms of an open source license, including, without limitation the GNU General Public License, and none of the Proprietary Products is subject to any license or other Contract that would require the Company or its Subsidiaries to divulge to any Person any source code or trade secret that is part of the Proprietary Products
(m) No Federal, state, local or other governmental entity, nor any university, college, or academic institution, has rights in Proprietary Products or other ongoing developments of the Company or its Subsidiaries, which provide such entity or institution any ownership of Proprietary Products, any exclusivity thereto, or the ability to restrict the rights of the Company or its Subsidiaries to make such products generally available to other parties.
(n) Except as set forth on Section 3.14(n) of the Disclosure Schedule, neither the Company nor its Subsidiaries has any obligation to pay any third party any royalties or other fees for the use of Intellectual Property, or have any obligation to pay such royalties or other fees that may result from the consummation of the transactions contemplated by this Agreement.
(o) Neither the Company nor its Subsidiaries is a party to any agreement that requires the Company and/or its Subsidiaries to perform any engineering, development and/or integration work for a third party that is intended to be used for further releases of Proprietary Products or for new products to be marketed by the Company or its Subsidiaries, which grant such third party ownership or exclusivity thereto, or otherwise restricts the rights of publicity the Company or the its Subsidiaries to make such product generally available to other parties.
(p) Except as set on Section 3.14(p) of the Disclosure Schedule, the consummation by the Company of the transactions contemplated hereby will not result in any loss or impairment of ownership by the Company or its Subsidiaries of, or the right of any of them to use, any Intellectual Property that is material to the business of the Company and its Subsidiaries as currently conducted, nor require the consent of any Governmental Authority or third party with respect to any such Intellectual Property. Neither the Company nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or any other right to any Intellectual Property of Parent or any of Parent’s Affiliates as a result of the consummation of the transactions contemplated by this Agreement.
(q) The Company and its Subsidiaries maintain policies and procedures regarding data security and privacy that are commercially reasonable and, in any event, in compliance with all applicable laws. To the Knowledge of the Company, there have been no security breaches relating to, violations of any security policy regarding or any unauthorized access of any confidential data used in the business of the Company and its Subsidiaries as currently conducted. The use and dissemination of any and all data and information concerning individuals in the business of the Company and its Subsidiaries as currently conducted is in compliance with all applicable privacy policies, terms of use, and Legal Requirements. The transactions contemplated to be consummated hereunder as of the Closing will not violate any privacy policy, terms of use, or Legal Requirements relating to the use of namesuse, likenessesdissemination, voices, signatures or biographical information, transfer of any other Person has occurred such data or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectinformation.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There Schedule 4.20 sets forth a true and correct list of all copyrights, trade names, trademarks, service marks, patents (or application therefor), or other intellectual property or proprietary property rights that are no Copyrightsnecessary in any material respect for the continued operation of the businesses of the Company and its Subsidiaries in the ordinary course of business as previously operated, Patent Rights or as to which the Company or its Subsidiaries is a licensee or licensor and Trademarks the jurisdiction where each is registered (including if any), other than licenses to utilize off-the-shelf software (the “Intellectual Property”). The Company and each of its Subsidiaries has good and marketable title to or possesses adequate licenses or other valid rights to use such Intellectual Property and any assumed or fictitious names off-the-shelf software used by the Company within or any of its Subsidiaries, free and clear of all Liens, except Permitted Exceptions, and has paid all maintenance fees, renewals or expenses related to such Intellectual Property. Neither the previous two (2) years) owned by use of such Intellectual Property nor the conduct of the business of the Company or licensed its Subsidiaries in accordance with their past practices misappropriates or infringes upon any patent or copyright of any third party or, to the CompanyKnowledge of the Company or any of its Subsidiaries, any trade name, trade secret, trademark or other intellectual property right of any third party. At any time since January 1, 2006, no Person has made or, to the Knowledge of the Company or any of its Subsidiaries, threatened to make, a claim against the Company or any of its Subsidiaries alleging that any of them violated, infringed, or otherwise improperly used any intellectual property rights.
(b) There is no Software Schedule 4.20 sets forth a true and complete list of: (i) all material software owned by or licensed to the Company except for mass market Software licensed to or any of its Subsidiaries (the “Company Proprietary Software”) and (ii) all material software (other than Company Proprietary Software) used by the Company that is commercially available and subject to or any of its Subsidiaries (the “shrink-wrapCompany Licensed Software” or and, together with the Company Proprietary Software, the “click-through” license agreementsCompany Software”).
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire its Subsidiaries have all right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used all intellectual property rights in the Business as currently conductedCompany Proprietary Software. The Company and its Subsidiaries have developed the Company Proprietary Software through its own efforts and for its own account, and the Company Proprietary Software is free and clear of all Liens, except for Permitted Exceptions. The use of the Company Proprietary Software does not breach any terms of any license or other contract between the Company or its Subsidiaries and any third party. The Company and each of its Subsidiaries is in compliance in all material respects with the terms and conditions of all license agreements to which it is a party relating to the Company Licensed Software. None of the Company or any of its Subsidiaries has received notice from any third party claiming any right, title or interest in the Company Proprietary Software.
(d) To the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct or any of its Subsidiaries, the Business as currently conductedCompany Proprietary Software does not infringe any patent, copyright or trade secret or any other intellectual property right of any third party.
(ie) No infringementExcept as disclosed on Schedule 4.20, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation none of the Business Company or the use, sale or distribution of its Subsidiaries has granted contractual rights in Company Software to any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectthird party.
Appears in 1 contract
Intellectual Property; Software. Other than (a) SCHEDULE 2.21(A) to the Disclosure Letter sets forth a true and complete list of all copyrights, trade names, trademarks, service marks or patents (or applications therefor) which are used by any of the Companies in their respective businesses, indicating as to each whether such Company is a licensee or licensor and the jurisdictions where each is registered (if any). Each Company has good title to or possesses adequate licenses or other valid rights to use all Intellectual Property used by such Company in its business or necessary to conduct its business ("COMPANY IP"), free and clear of all Liens, and has paid all maintenance fees, renewals or expenses related to such Intellectual Property. To the Knowledge of the Shareholders and subject to the disclaimer set forth in SCHEDULE 2.21(A) to the Disclosure Letter, neither the use of such Intellectual Property nor the conduct of the Companies' businesses in accordance with each such entity's past practice, misappropriates, infringes upon or conflicts with any Intellectual Property of any third party. Except as set forth on Schedule 5.12:
(ain SCHEDULE 2.21(A) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
Disclosure Letter, no party has filed a claim (b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Sellerthe Shareholders, threatened to file a claim) against any Company alleging that challenge it has violated, infringed on or otherwise improperly used the validity, ownership or use of any Intellectual Property owned of a third party, and none of the Companies has violated or infringed any patent, trademark, trade name, service ▇▇▇▇, service name, copyright or trade secret held by the Company; (v) the Company a third party. No order, decree, judgment, temporary restraining order or preliminary or permanent injunction has not had notice ofbeen rendered by any Governmental Entity, andand no Action is pending, or, to the Knowledge of Sellerthe Shareholders, there is no basis forthreatened, a claim against the Company that the operationsthat, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or in any such rights case, limits or challenges the ownership, use, validity or enforceability of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectCompany IP.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Express Scripts Inc)
Intellectual Property; Software. Other than as set (a) Set forth on Schedule 5.12:
(a2.1(d) There is a true and correct list of all patents, internet domain names, URL addresses, registered trademarks, registered copyrights and all applications therefor that are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed any Seller Party in Relation to the CompanyBusiness and all unregistered trademarks and copyrights and Intellectual Property, including, without limitation, any trade names or logos, that are material to the Business that are owned by any Seller Party.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: Except as set forth in Schedule 4.13(b): (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company applicable Seller Party owns the entire right, title and interest in and to, or and has the valid and enforceable right to use, free and clear of any Liens, the Purchased Intellectual Property that is not owned by a third party and Software used in licensed to Seller (the Business as currently conducted, “Owned Intellectual Property”); and such Seller Party has the exclusive right to the Knowledge of Seller there is no other Intellectual Property necessary bring Actions for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Companyinfringement thereof; (ii) no claim all of any infringementthe patents, misappropriationtrademark registrations, violation or dilution of any service ▇▇▇▇ registrations, trade name registrations, domain name registrations, design right registrations and copyright registrations included in the Owned Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Businessare valid; (iii) no claim of invalidity Person has asserted in writing that, with respect to the Owned Intellectual Property, any Seller Party or a licensee of any Intellectual Property owned by the Company Seller Party is infringing or has been made by infringed any other Persondomestic or foreign patent, trademark, service ▇▇▇▇, tradename, copyright, domain name right or design right, or has misappropriated or improperly used or disclosed any Trade Secret, Confidential Information or know-how; (iv) no Proceedings are pending orthe Owned Intellectual Property, to the Knowledge of Sellerand its use or operation, threatened that challenge the validitydoes not infringe, ownership or use of and has not infringed, on any Intellectual Property owned by of any Person, and has not involved the Companymisappropriation or improper use or disclosure of any Trade Secrets, Confidential Information or know-how of any Person; (v) all working requirements and all fees, annuities and other payments that are due on or before the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes Closing Date for any of the Business infringeOwned Intellectual Property, misappropriateincluding, violate without limitation, all foreign or dilute domestic patents, patent applications, trademark registrations, service ▇▇▇▇ registrations, tradename registrations, domain name registrations, copyright registrations and any applications for any of the preceding, have been met or paid; (vi) the making, using, presenting, selling, manufacturing, marketing, licensing, reproduction, distribution or publishing of any process, service, machine, manufacture, article, composition of matter or material pursuant to any part of the Owned Intellectual Property does not infringe any domestic or any such rights foreign patent, trademark, service ▇▇▇▇, tradename, copyright or other Intellectual Property right; (vii) the Owned Intellectual Property is not the subject of any other Personpending Action; and (viviii) to the Knowledge of Sellerthe Seller Parties, no Person infringes, misappropriates or violates is infringing on any of Intellectual Property owned rights of any Seller Party related to or exclusively licensed by or to Seller, in each case except as could not, individually or included in the aggregatePurchased Assets.
(c) The Seller Parties have taken reasonable and appropriate measures to safeguard and maintain (i) the secrecy and confidentiality of all Trade Secrets contained in the Purchased Intellectual Property; (ii) all copyrights, reasonably be expected inventions and patents contained in the Purchased Intellectual Property; and (iii) all trademarks, service marks, domain names and trade names contained in the Purchased Intellectual Property.
(d) Schedule 4.13(d) sets forth a true and complete list of: (i) all software Relating to have a Material Adverse Effectthe Business that is owned by any Seller Party (the “Seller Proprietary Software”); (ii) all software other than Seller Proprietary Software used by any Seller Party in Relation to the Business other than “off-the-shelf” software (the “Seller Licensed Software” and, together with the Seller Proprietary Software, the “Seller Software”); and (iii) all technical and restricted materials in any Seller Party’s possession relating to the acquisition, design, development, use or maintenance of computer code program documentation and materials used in Relation to the Business.
(e) The applicable Seller Party has all right, title and interest in and to all intellectual property rights in the Seller Proprietary Software free and clear of all Liens except for Permitted Liens. The use of the Seller Software does not breach any terms of any license or other agreement between any Seller Party and any other Person. The Seller Parties are in compliance with the terms and conditions of all license agreements in favor of the Seller Parties
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsExcept as do not and would not reasonably be expected to have a Company Material Adverse Effect, Patent Rights (i) Section 3.17(a) of the Company Disclosure Schedule sets forth an accurate and Trademarks complete list of all (including any assumed A) patents and patent applications, (B) trademark or fictitious names used service ▇▇▇▇ applications and registrations, (C) domain name registrations, and (D) copyright registrations and applications, in each case, owned or filed by the Company within or any of its Subsidiaries, and (ii) either the previous two Company or a Subsidiary of the Company owns, free and clear of all Liens (2) years) owned by other than Permitted Liens), or licensed has a valid and continuing license to use, all Intellectual Property and Software used in connection with the Companybusiness of the Company and its Subsidiaries as currently conducted.
(b) There is Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Company’s Knowledge as of the date of the Prior Agreement, the conduct of the business as then conducted by the Company and its Subsidiaries did not infringe, misappropriate, dilute or otherwise violate any Person’s Intellectual Property, (ii) as of the date of the Prior Agreement, there was no Software such claim pending or, to the Company’s Knowledge, threatened against the Company or its Subsidiaries, (iii) to the Company’s Knowledge as of the date of the Prior Agreement, except as set forth in Section 3.17(b) of the Company Disclosure Schedule, no Person had infringed, misappropriated or otherwise violated, or was infringing, misappropriating or otherwise violating, any Intellectual Property owned by the Company, and (iv) no such claims are pending or licensed to threatened in writing against any Person by the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsits Subsidiaries.
(c) The Company is not a party and its Subsidiaries have taken reasonably necessary steps to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets protect and preserve the confidentiality of all material trade secrets and other material confidential information owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsand/or its Subsidiaries.
(d) The Company owns maintains control of copies of the entire right, title and interest Software included in and to, or has the valid and enforceable right to use, the Intellectual Property which the Company or its Subsidiaries license from third Persons or otherwise use and Software used in the Business as currently conducteddocumentation (including user guides) reasonably necessary to use such Software, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to maintains control over the use of names, likenesses, voices, signatures source code and/or such other documentation (including user guides and specifications) for all material proprietary Software developed or biographical information, of any other Person has occurred or results in any way from created by the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property Company and owned by the Company has been made by or any other Person; of its Subsidiaries (iv“Company Proprietary Software”) no Proceedings are pending orand/or such documentation (including user guides and specifications) reasonably necessary to use, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) maintain and modify the Company has not had notice ofProprietary Software. The Company Proprietary Software, and, to the Knowledge of SellerCompany’s Knowledge, there is no basis for, a claim against the material Software included in the Intellectual Property which the Company that the operationsor its Subsidiaries license from third Persons or otherwise use functions substantially in compliance with applicable written, activitiespublished documentation and specifications, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, do not and would not reasonably be expected to have a Company Material Adverse Effect. As used in this Agreement, “Software” means all computer programs, including any and all software implementations of algorithms, models and methodologies whether in source code, object code or other form, software databases and compilations, including any and all data and collections of data, descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing. Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries own, lease or license all Software, hardware, databases, computer equipment and other information technology necessary for the operations of the Company’s and its Subsidiaries’ businesses as currently conducted.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 2.16 of the Disclosure Letter contains a list and description of all copyrights, Patent Rights and Trademarks (including any assumed patents, industrial design, trademarks, software owned by, licensed to or fictitious names used by Seller in the Company within conduct of the previous two Acquired Factories (2) years) owned excluding "shrink-wrap" license agreements, or software imbedded in any equipment used by or licensed Seller), agreements, contracts, licenses, sublicenses, assignments and indemnities which relate to the Companyabove, that relate to the Acquired Factories or Assets.
(b) There is no Software owned by or licensed to Except as set forth in Section 2.16 of the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate toDisclosure Letter, Seller either: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used software included in the Business Assets, free and clear of any encumbrance; or (ii) has the perpetual, royalty-free right to use the same.
(c) Except as currently conductedset forth in Section 2.16 of the Disclosure Letter: (i) the Intellectual Property to be transferred hereunder by Seller is valid and enforceable; and (iii) Seller has the sole and exclusive right to bring actions for infringement or unauthorized use of the Intellectual Property owned by Seller and included in the Assets, and to the best Knowledge of Seller Seller, there is no other Intellectual Property necessary basis for any such action. Correct and complete copies of: (x) registrations for all registered copyrights, patent rights and trademarks identified in Section 2.16 as being owned by Seller; and (y) all pending applications to register unregistered copyrights, patent rights, industrial design rights, and trademarks identified in Section 2.16 as being owned by Seller (together with any subsequent correspondence or filings relating to the Company foregoing) have heretofore been delivered by Seller to conduct the Business as currently conductedBuyer.
(id) No infringementExcept as set forth on Section 2.16 of the Disclosure Letter, misappropriation or violation no infringement of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, intellectual property right of any other Person person has occurred or results in any way from the operation operations of the Business or the useAcquired Factories, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution infringement of any Intellectual Property or any such rights intellectual property right of any other Person person has been made or asserted in respect of the operation operations of the Business; (iii) Acquired Factories and Seller has had no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the or Knowledge of Seller, there is no any basis for, a claim against the Company Seller that the operations, activities, products, Softwareequipment, equipment machinery or processes of the Business infringe, misappropriate, violate or dilute Acquired Factories infringe any Intellectual Property or any such rights intellectual property right of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectperson.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 4.17(a) of the Purchaser Disclosure Schedule sets forth an accurate and complete list of all (A) patents and patent applications, Patent Rights (B) trademark or service ▇▇▇▇ applications and Trademarks registrations, (including any assumed or fictitious names used by the Company within the previous two (2C) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrightsdomain name registrations, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iiiD) copyright registrations and applications, in each case, owned or filed by Parent or any Softwareof its Subsidiaries. Either Parent or a Subsidiary of Parent owns, free and clear of all Liens (other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and toPermitted Liens), or has the a valid and enforceable continuing license or a valid right to use, the all Intellectual Property and Software used in connection with the Business as currently conducted, business of Parent and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business its Subsidiaries as currently conducted.
(b) Except as is not and would not reasonably be expected to be material to the Parent and its Subsidiaries, taken as a whole, (i) No infringementthe conduct of the business as currently conducted by Parent and its Subsidiaries does not infringe, misappropriation misappropriate, dilute or violation of otherwise violate any Person’s Intellectual Property, or any rights (ii) as of publicity or privacy relating the date of this Agreement, there is no such claim pending or, to the use Purchaser Entities’ Knowledge, threatened against Parent or its Subsidiaries, (iii) to the Purchaser Entities’ Knowledge as of names, likenesses, voices, signatures or biographical information, the date of any other this Agreement no Person has occurred or results in any way from the operation of the Business is infringing, misappropriating or the use, sale or distribution of otherwise violating any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property Parent or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; its Subsidiaries, and (iv) no Proceedings such claims are pending oror threatened in writing against any Person by Parent or any of its Subsidiaries.
(c) Parent and its Subsidiaries have taken reasonably necessary steps to protect and preserve the confidentiality of all material trade secrets and other material confidential information owned by Parent or any of its Subsidiaries.
(d) Parent or its Subsidiaries maintain control of copies of the Software included in the Intellectual Property which Parent or its Subsidiaries license from third Persons or otherwise use and documentation (including user guides) reasonably necessary to use such Software, to and Parent or its Subsidiaries maintain control over the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property source code and/or such other documentation (including user guides and specifications) for all material proprietary Software developed or created by Parent or its Subsidiaries and owned by Parent or any of its Subsidiaries (“Purchaser Proprietary Software”) and/or such documentation (including user guides and specifications) reasonably necessary to use, maintain and modify the Company; (v) the Company has not had notice ofPurchaser Proprietary Software. The Purchaser Proprietary Software, and, to the Knowledge of SellerPurchaser Entities’ Knowledge, there is no basis forthe material Software included in the Intellectual Property which Parent or its Subsidiaries license from third Persons or otherwise use functions substantially in compliance with applicable written, a claim against the Company that the operationspublished documentation and specifications. Parent or its Subsidiaries own, activities, products, lease or license all Software, hardware, databases, computer equipment or processes and other information technology necessary for the operations of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; Parent’s and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except its Subsidiaries’ businesses as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectcurrently conducted.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by Except as would not reasonably be expected to materially impact the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: its Subsidiaries, (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to either the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The a Subsidiary of the Company owns the entire right, title and interest in and toowns, or has the valid and enforceable right is licensed or otherwise possesses adequate rights to use, the Intellectual Property and Software used in connection with the Business business of the Company and its Subsidiaries as currently conducted, conducted and to the Knowledge of Seller there is (ii) no other Intellectual Property necessary for the Company Person holds any right, title or interest in or to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or exclusively licensed to (or purported to be owned by or exclusively to licensed to) the Company; Company or its Subsidiaries (ii) no claim collectively, the “Company IP”). The consummation of the Merger and the other transactions contemplated hereby do not and will not result in any material adverse change or material loss of any infringementrights in any Company IP, misappropriation, violation or dilution and will not result in the creation of any Intellectual Property Liens (other than Permitted Liens) with respect to any Company IP.
(b) Except as would not reasonably be expected to materially impact the Company or any such rights of any other Person has been made or asserted in respect its Subsidiaries, the conduct of the operation of business as currently conducted, and as conducted in the Business; past three (iii3) no claim of invalidity of any Intellectual Property owned years, by the Company has been made by and its Subsidiaries does not infringe or otherwise violate any other Person; (iv) ’s Intellectual Property, and, as of the date of this Agreement, there is no Proceedings claim to the contrary pending or to the knowledge of the Company threatened against the Company or its Subsidiaries. To the knowledge of the Company as of the date of this Agreement, no Person is infringing or otherwise violating any Company IP, and no claims alleging the contrary are pending or, to the Knowledge of Seller, or threatened that challenge the validity, ownership or use of against any Intellectual Property owned Person by the Company; Company or its Subsidiaries.
(vc) Section 3.16(c) of the Company has not had notice ofDisclosure Letter contains a complete and correct list, as of the date of this Agreement, of all material registrations and applications for registration included in the Company IP (collectively, the “Registered Company IP”). The Company or its Subsidiaries have paid all maintenance fees, filed all statements of use and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes knowledge of the Business infringeCompany, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) disclosed to the Knowledge of SellerUnited States Patent and Trademark Office, no Person infringes, misappropriates or violates United States Copyright Office and any Intellectual Property owned or exclusively licensed by or analogous Governmental Entity any information required to Sellerbe disclosed under applicable Law, in each case except as could notreasonably necessary to maintain and protect the material Registered Company IP.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all Company IP is valid and enforceable, and except for office actions arising in the normal course of prosecution there are no claims pending or, to the Company’s knowledge, threatened that challenge the scope, ownership, validity, or enforceability of any Company IP.
(e) No trade secret owned by the Company or any of its Subsidiaries and material to their respective businesses has been authorized by the Company or any of its Subsidiaries to be disclosed or, to the knowledge of the Company, has been disclosed by the Company or any of its Subsidiaries to any Person other than pursuant to written non-disclosure agreements restricting the disclosure and use of such material trade secret. The Company and its Subsidiaries have taken commercially reasonable security measures to protect the confidentiality of all the material information that derives its value from its confidentiality included in the Company IP.
(f) The Company maintains control of copies of the Software that the Company or its Subsidiaries license or otherwise use and documentation (including user guides) reasonably necessary to use such Software, and the Company maintains control over the use of source code and/or such other documentation (including user guides and specifications) for all material Software which is owned by the Company or any of its Subsidiaries (“Company Proprietary Software”) reasonably necessary to use, maintain and modify the Company Proprietary Software. The Company Proprietary Software, and, to the knowledge of the Company, the material Software that the Company or its Subsidiaries license or otherwise use, functions substantially in compliance with applicable written, published documentation and specifications, except in each case as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect.. The IT Assets are sufficient in all material respects for the conduct of the business of the Company and its Subsidiaries as currently conducted Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Software owned by any other Person has been incorporated into any Company Proprietary Software in a manner that would reasonably be expected to (i) require any Company Proprietary Software (in whole or in material part) to be licensed, sold or disclosed, (ii) grant the right to decompile, disassemble or reverse engineer the source code of any Company Proprietary Software (in whole or in material part) or (iii) limit the ability to charge license fees or otherwise seek compensation in connection with the licensing or distribution of any Company Proprietary Software (in whole or in material part). As used in this Agreement, “Software” means all computer programs, including any and all software implementations of algorithms, models and methodologies whether in source code or object code form, software databases and compilations. As used in this Agreement, “IT Assets” means computers, servers, workstations, routers, hubs, switches, data communications lines, and all other information technology equipment, and all associated documentation owned by the Company or its Subsidiaries or licensed or leased by the Company or its Subsidiaries pursuant to written agreement (excluding any public networks)/
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There Parent and each Subsidiary owns, or is validly licensed or otherwise has the right to use (in each case, free and clear of all material Encumbrances) all patents, patent applications, trademarks (both registered and unregistered), trade names, service marks (both registered and unregistered), copyrights (both registered and unregistered) and other proprietary intellectual property rights, computer programs and other technology (collectively "Intellectual Property") that are no Copyrightsused in Parent's or any Subsidiary's businesses. Section 4.16(a) of the Parent Disclosure Schedule sets forth, Patent Rights as of the date hereof, a complete and Trademarks accurate list of all patents and pending patent applications, trademarks, service marks, trade names, material copyrights (including without limitation, computer software programs), and registrations and applications for registration of copyrights, trademarks, service marks, trade names, trade dress and domain names owned, registered in the name of or otherwise held for use by Parent or any assumed or fictitious names used by Subsidiary in the Company within the previous two (2) years) owned by or licensed to the Companyconduct of its business.
(b) There is no Software owned by Section 4.16(b) of the Parent Disclosure Schedule sets forth a list of all material licenses, sublicenses, consents and other agreements (whether written or otherwise) ("Material License") (A) pertaining to any Intellectual Property (other than commercially available, off-the-shelf software applications obtained or licensed for less than $5,000 per copy) used by Parent or any Subsidiary in the conduct of its business, and (B) by which Parent or any Subsidiary licenses or otherwise authorizes a third party to use Parent's or any Subsidiary's Intellectual Property. Parent and each Subsidiary is in compliance in all material respects with all applicable provisions of such agreements, and such agreements are now in full force and effect. Except as set forth in Section 4.16(b) of the Parent Disclosure Schedule, the transactions contemplated under this Agreement do not and will not trigger any provision under any such license agreement to (x) permit the termination of such agreement by the licensor; or (y) permit the renegotiation of any terms, including without limitation the amount of any commission, royalty or other fee(s) payable under such agreement. To the Knowledge of Parent, the computer software and information technology systems owned, leased or licensed for use in the business do not contain any viruses, worms, or other disabling or malicious code, and any such software or systems, to the Company except for mass market Software licensed to the Company that is commercially available extent applicable, will consistently and subject to “shrink-wrap” or “click-through” license agreementsaccurately interpret, calculate, manipulate, store, and exchange data/time date.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation In each of the Business or the usefollowing cases, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened except for those matters that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has have not had notice of, and, and could not reasonably be expected to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could nothave, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect: (i) to the Knowledge of Parent, the business operations of Parent and any Subsidiary do not infringe, dilute, misappropriate or otherwise violate the Intellectual Property rights of any Person; (ii) to the Knowledge of Parent, no Person is challenging or infringing on or otherwise violating any right of Parent or any Subsidiary with respect to any Parent-owned Intellectual Property; (iii) neither Parent nor any Subsidiary has received any written notice or otherwise has Knowledge of any claim, demand, suit, order or proceeding that the operations of the Parent or any Subsidiary infringe, misappropriate or otherwise violate the Intellectual Property rights of any Person; (iv) to its Knowledge, all Parent-owned Intellectual Property is in full force and effect, is held of record in the name of Parent free and clear of all Encumbrances, and is not the subject of any cancellation or reexamination proceeding or any proceeding challenging their extent or validity; and (v) none of the material trade secrets, know-how or other confidential or proprietary information of Parent or any Subsidiary has been disclosed to any Person unless such disclosure was necessary and made pursuant to an appropriate confidentiality agreement.
(d) The information technology systems owned, licensed, leased, operated on behalf of, or otherwise held for use in the business by Parent or any Subsidiary, including all computer hardware, software, firmware and telecommunications systems used in the business of Parent or any Subsidiary perform reliably and in material conformance with the appropriate specifications or documentation for such systems.
Appears in 1 contract
Sources: Merger Agreement (Emtec Inc/Nj)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There Schedule 4.12(a) sets forth a true and complete list of all patent, trademark, copyright or other registrations, industrial designs, domain names and any applications for any of the foregoing that are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used owned by the Company within or its Subsidiary (collectively the previous two (2“Registered IP”) years) and all unregistered trademarks and service marks owned by the Company or licensed to the Companyits Subsidiary.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available its Subsidiary own and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns possess the entire right, title and interest in and toto all owned Intellectual Property, or has including the valid and enforceable right to useuse the “AACOA” name, free and clear of all Liens. The Company and its Subsidiary have all necessary licenses, rights, permissions and authorizations to use all licensed Intellectual Property.
(c) Neither the Company nor its Subsidiary has (i) infringed or misappropriated any Intellectual Property and Software used in of any other Person, (ii) received any notice of infringement, misappropriation or conflict with respect to any Intellectual Property of any other Person (including any demands or unsolicited offers to license any Intellectual Property from any other Person), (iii) received any notice challenging or questioning the Business as currently conductedvalidity, and enforceability, use or ownership of any Intellectual Property, (iv) threatened any Person of infringing or misappropriating any of its Intellectual Property or (v) granted any Person rights to any of its material Intellectual Property.
(d) To the Knowledge of Seller there the Shareholders, no Person is no other infringing upon or misappropriating any material Intellectual Property owned or otherwise used by the Company or its Subsidiary.
(e) All necessary registration, maintenance and renewal fees currently due in connection with the Registered IP have been paid, and all necessary documents, records and certifications in connection with the Registered IP have been filed with the relevant patent, copyright, trademark or other Governmental Authorities for the purpose of maintaining the industry and intellectual property rights relating thereto. No IP Licenses are in effect between the Company and its Subsidiary, on the one hand, and any other Person, on the other hand, and there are no royalties, fees or other payments payable by the Company or its Subsidiary to any Person by reason of the ownership, development, use, license, sale or disposition of the Registered IP or any unregistered trademarks and service marks owned (or formerly owned) by the Company or its Subsidiary.
(f) To the Knowledge of the Shareholders, no unauthorized disclosure of any confidential or proprietary information of the Company or its Subsidiary has occurred.
(g) The current Employees and former employees of the Company and its Subsidiary do not currently create, and have not created, Intellectual Property resulting from their services for the Company and therefore have not executed a “work for hire” or legally equivalent agreement related to conduct the Business as currently conductedassignment of such Intellectual Property to the Company or its Subsidiary.
(h) The Company and its Subsidiary have taken all commercially reasonable actions to maintain and protect all of their Intellectual Property, including paying all maintenance, annuity and applicable fees of Governmental Authorities required to maintain their registered Intellectual Property registrations in force and maintaining the secrecy of their trade secrets and other confidential or proprietary information.
(i) No infringement, misappropriation Schedule 4.12(i) sets forth a true and complete list of all Software used by the Company or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results its Subsidiary in any way from connection with the operation of the Business or the use, sale or distribution (other than off-the-shelf Software Licenses) and accurately identifies which of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property Software is owned by the Company has been made or its Subsidiary, if any, and which is licensed to or by the Company or its Subsidiary and the name of the owner, the licensee and/or the licensor, as applicable. The Company and its Subsidiary own and possess the entire right, title, and interest in and to such Software (including to the off-the shelf Software Licenses), free and clear of all Liens, not subject to any co-ownership, right to use or joint development interests of any other Person; (iv) no Proceedings Persons, and, immediately following the Closing, the Company and its Subsidiary will continue to own and possess the entire right, title and interest in and to all such Software, free and clear of all Liens. The Company and its Subsidiary are pending orin material compliance with, and have operated the Business so as to comply with, all terms of all Software Licenses governing such Software. To the Knowledge of Sellerthe Shareholders, threatened that challenge the validity, ownership or use of no party to any Intellectual Property owned by the Company; (v) such Software License has given the Company has not had or its Subsidiary written notice ofof its intention to cancel, and, terminate or fail to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or renew any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectSoftware License.
Appears in 1 contract
Intellectual Property; Software. Other than (a) Schedule 2.15(a)(i) lists all trademarks, service marks, internet domain names, and patents (the “Intellectual Property”) which are owned by any of the Dyn International Companies and which are Registered (as defined below) or material to their operations (collectively, the “Owned Intellectual Property”); and Schedule 2.15(a)(ii) identifies all Intellectual Property listed on Schedule 2.15(a)(i) that is to be transferred to a member of the Seller Group prior to the Closing pursuant to the Internal Alignment Transactions (the “Excluded IP Assets”). For purposes of this Agreement, no person or entity that is merely the exclusive licensee of any trademark, service ▇▇▇▇ or copyright, any application for registration thereof, any patent or application therefor, any Internet domain name, or any right under any of the foregoing will be deemed to be the owner thereof. For the purposes of this Agreement, Registered shall mean issued, registered, renewed or the subject of a pending application. For the avoidance of doubt, trademark, service ▇▇▇▇ or copyright will be deemed registered only if it is registered with a Governmental Entity.
(b) Schedule 2.15(b)(i) sets forth a list of the Licensed Intellectual Property (as defined below). Except as set forth on Schedule 5.12:
2.15(b)(ii) (aincluding, without limitation, any of the agreements or other documents specified therein) There are no Copyrightsand Schedule 2.15(b)(iii), Patent Rights which lists all items of Intellectual Property that constitute Excluded IP Assets, to the knowledge of CSC and Trademarks the Seller, each item of Owned Intellectual Property and each item of Intellectual Property used but not owned by any of the Dyn International Companies and material to their operations (including any assumed or fictitious names the “Licensed Intellectual Property”) may be used by one or more of the Dyn International Companies, free and clear of any Liens, other than any obligation to pay royalties, license fees or other amounts with respect to any Licensed Intellectual Property under the license such Dyn International Company within received for such Licensed Intellectual Property or other terms, conditions or restrictions of such license. Except as specified in Schedule 2.15(b)(iv) (including, without limitation, any of the previous two agreements or other documents specified therein): (2i) yearsneither CSC, the Seller, nor any of the Dyn International Companies has received any written notice or been served any complaint (x) owned by challenging the validity or licensed enforceability of any Owned Intellectual Property, or (y) alleging that any person that is not one of the Dyn International Companies (a “Third Party”) has any claim thereto or interest therein, and (ii) to the Company.
(b) There knowledge of CSC and the Seller, the Owned Intellectual Property is no Software valid and enforceable and is owned exclusively by one or licensed to more of the Company except for mass market Software licensed to the Company that is commercially available Dyn International Companies, free and subject to “shrink-wrap” or “click-through” license agreementsclear of any Liens.
(c) The Company Schedule 2.15(c)(i) lists all computer programs (other than off-the-shelf or otherwise commercially available computer programs) in current use by the Dyn International Companies and material to their operations (collectively, the “Software”) and Schedule 2.15(c)(ii) identifies all Software listed on Schedule 2.15(c)(i) that is not a party to Contracts which relate to: (iincluded in the Excluded IP Assets. Except as specified in Schedule 2.15(c)(ii) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) (including, without limitation, any Softwareof the agreements or other documents specified therein): each item of Software may be used by one or more of the Dyn International Companies, free and clear of any Liens, other than market any obligation to pay royalties, license fees or other amounts with respect to any Software licensed to under the license such Dyn International Company received for such Software or other terms, conditions or restrictions of such license, and other than Liens that is commercially available and subject to “shrink-wrap” or “click-through” license agreementswould not result in a Company Material Adverse Effect.
(d) The Except as set forth on Schedule 2.15(d)(i) (including, without limitation, any of the agreements or other documents specified therein), and except for any violation of the following that would not result in a Company owns Material Adverse Effect: (i) neither CSC nor any Seller has received since January 1, 2002 any written notice or been served any complaint alleging (x) that a Dyn International Company is in material breach of any license under which such Dyn International Company received the entire right, title and interest in and toright to use any Licensed Intellectual Property or Software, or (y) that a Dyn International Company is infringing or otherwise violating any trademark, service ▇▇▇▇, copyright, trade secret or patent of any Third Party, and (ii) to the knowledge of CSC and the Seller, (w) no complaint has the been filed asserting such breach or such infringement or violation, and no valid and enforceable right to usebasis exists for same, (x) no Dyn International Company is in breach of any such license or is infringing any trademark, service ▇▇▇▇, copyright, trade secret or patent of any Third Party, (y) except as set forth on Schedule 2.15(d)(ii), the consummation of the transactions contemplated hereby will not give rise to any material breach of or termination right with respect to any such license, (z) no Third Party is infringing any Owned Intellectual Property or any trade secret owned by any of the Dyn International Companies and (iii) no licensor under any license agreement pursuant to which any Dyn International Company received a license to any Licensed Intellectual Property has given the Dyn International Company notice of its intention to cancel, terminate or fail to renew.
(e) Except as would not be reasonably likely to result in a Company Material Adverse Effect, to the knowledge of CSC and the Seller, all Software (i) performs in accordance with the documentation or other written material used in the Business connection with it; (ii) is in machine readable form and contains all current revisions; (iii) is free of material defects in operations; and (iv) does not contain any disabling devices.
(f) Except as currently conductedwould not be reasonably likely to result in a Company Material Adverse Effect, and to the Knowledge knowledge of Seller there CSC and the Seller, the source code for all Software that is no other Intellectual Property necessary for owned by any of the Company to conduct the Business as currently conducted.Dyn International Companies
(i) No infringementis sufficiently documented to enable a computer software developer of reasonable skill to understand, misappropriation or violation of any Intellectual Propertymodify, or any rights of publicity or privacy relating to the use of namesrepair, likenessesmaintain, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; compile and otherwise utilize such Software and (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect constitutes trade secrets that are valid and protectable and are not part of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership public knowledge or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectliterature.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(ai) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by SCHEDULE 3(s) of the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software Disclosure Letter contains a true and complete list of all patents, trademarks, service marks and copyright registrations, and all pending applications for patents, trademarks, service marks and copyright registrations, owned by or licensed to the Company except for mass market Software licensed to (collectively, the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements"Intellectual Property").
(cii) The SCHEDULE 3(s) of the Company is not Disclosure Letter contains a party to Contracts which relate to: true and complete list of (i) any Copyrightsall computer software owned by the Company and all computer software licensed by the Company (collectively, Patent Rights or Trademarks; the "SOFTWARE"), (ii) any Trade Secrets owned all Software licensed (or sublicensed) by or licensed the Company to the Company; its customers and (iii) any Software, other than market Software licensed all licenses and agreements pursuant to which the Company that is commercially available and subject to “shrink-wrap” licenses or “click-through” license agreements.
(dsublicenses Software from other persons. Except as specified on SCHEDULE 3(s) The of the Company Disclosure Letter the Company owns the entire all right, title and interest in and toto the Software, free and clear of any liens, claims or encumbrances of any kind or nature, or, in the case of Software identified on SCHEDULE 3(s) of the Company Disclosure Letter as owned by third parties and licensed to the Company, the Company has an irrevocable right to use such Software under licenses with respect to the third party Software required in connection with the conduct of its business. All Software owned by the Company was developed by the Company entirely through the Company's own efforts and for its own account. The use of Software licensed to the Company from third parties (including the sublicensing of such licensed Software to customers) does not violate the terms of the respective license agreements with respect to such licensed Software.
(iii) No patent, trademark, service ▇▇▇▇, copyright, trade secret, computer software or other intellectual property right other than the Intellectual Property set forth on SCHEDULE 3(s) of the Company Disclosure Letter and software set forth on SCHEDULE 3(s) of the Company Disclosure Letter is necessary for the Company to conduct, or is used by the Company in its operation of, its business as it is now being conducted.
(iv) SCHEDULE 3(s) of the Company Disclosure Letter contains a true and complete list of all licenses, sublicenses, covenants or agreements which have been entered into by the Company with respect to the Intellectual Property.
(v) The conduct by the Company of its business as currently conducted, does not and will not conflict with or infringe upon any patent, trademark, service ▇▇▇▇, copyright, trade secret or other intellectual property right of any third party, nor has the valid Company been notified of any alleged infringement by the Company of any such third party rights.
(vi) No officer, employee (including both current and enforceable former employees), consultant (including both current and former consultants) or independent contractor (including both current and former contractors) of the Company owns, directly or indirectly, in whole or in part, any patent, trademark, service ▇▇▇▇, copyright, computer software, trade secret or other intellectual property right which the Company is using or which is necessary for the business of the Company as now conducted.
(vii) The Intellectual Property and Software listed on SCHEDULE 3(s) to use, the Company Disclosure Letter as being owned by the Company are referred to in this Agreement as the "OWNED INTANGIBLE RIGHTS," and the Intellectual Property and Software used listed on SCHEDULE 3(S) to the Company Disclosure Letter as being licensed to the Company are referred to in this Agreement as the "LICENSED INTANGIBLE RIGHTS." The Owned Intangible Rights are not subject to any arrangement requiring any payment to any person or the obligation to grant rights to any person in exchange for such owned Intangible Rights. All personnel, including employees, agents, consultants and contractors, who have contributed to or participated in the Business as currently conducted, conception and to development of any of the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
Owned Intangible Rights either (i) No infringementhave been party to a work-for-hire arrangement or agreement with the Company (pursuant to which all right, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating title and interest pertaining to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively such Owned Intangible Rights was assigned to the Company; ) or (ii) no claim have executed appropriate instruments of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted assignment in respect favor of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by Company as assignee that have conveyed to the Company has been made by any other Person; (iv) no Proceedings are pending orfull, to the Knowledge effective, and exclusive ownership of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; all tangible and (viintangible property thereby arising. Except as disclosed on SCHEDULE 3(s) to the Knowledge Company Disclosure Letter, the validity of Seller, no Person infringes, misappropriates the Owned Intangible Rights and title thereto and the validity of the Licensed Intangible Rights have not been questioned in any prior litigation and are not the subject of any threatened or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or proposed litigation. The consummation of the transactions contemplated hereby will not result in the aggregate, reasonably be expected to have a Material Adverse Effectloss or impairment of any of the Owned Intangible Rights or any of the Licensed Intangible Rights.
Appears in 1 contract
Sources: Securities Purchase Agreement (Hybrid Networks Inc)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSchedule 3.10(a) sets forth all Intellectual Property Rights owned by the Sellers, Patent Rights and Trademarks their Subsidiaries, or the Company that is currently used or held for use in connection with the operation of the Business (including all Company IP, but excluding any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed rights to the Companyname “Change” or any derivations thereof) and subject to an application or registration before a Governmental Body (“Registered IP”), and identifies the owner of each item of Registered IP following the consummation of the Restructuring. All Registered IP is subsisting, and to the knowledge of the Sellers, valid and enforceable. None of the Registered IP is the subject of any opposition, cancellation, reexamination, or any other Proceeding with the United States Patent and Trademark Office (other than routine office actions and other similar proceedings) or any other intellectual property registry or Governmental Body anywhere in the world challenging the ownership, registration, validity, enforceability, or patentability of any of the foregoing and none of the Registered IP has lapsed, expired, or been abandoned or withdrawn.
(b) There is no Software owned by The Sellers or licensed to their Subsidiaries (as of the date hereof) and the Company except for mass market Software licensed to (immediately following the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(cconsummation of the Restructuring) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and toown, or has the valid and enforceable right are licensed or otherwise possess adequate rights to useuse (including without limitation an adequate number of seats), the Intellectual Property and Software used in the Business as currently conducted, connection with and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct operation of the Business as currently conducted.
(ic) No infringementImmediately following the Closing, misappropriation the Company will exclusively own, all right, title, and interest in and to the Company IP free and clear of Liens (other than Permitted Liens). Neither the execution, delivery, or violation performance of this Agreement nor the consummation of any Intellectual Propertyof the transactions contemplated by this Agreement will, with or without notice or lapse of time or both, result in, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of give any other Person has occurred the right or results in option to cause or declare, (i) a loss of, or Lien (other than Permitted Liens) on, any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the CompanyCompany IP; (ii) no claim a material breach of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the BusinessContract listed on Schedule 3.09(a)(ii); (iii) no claim of invalidity the release, disclosure, or delivery of any Intellectual Property owned Company IP, including of any source code for Company Proprietary Software by the Company has been made by or to any escrow agent or other PersonPerson (other than Buyer); or (iv) the grant, assignment, or transfer to any other Person of any license or other right or interest under, to, or in any of the Company IP.
(d) Each Person who is or was an employee or contractor of any of the Sellers or their Subsidiaries and who is or was involved in the creation or development of any Company IP has signed a valid and, to the knowledge of Sellers, enforceable agreement containing an assignment of such Person’s Intellectual Property Rights in such Company IP to the Sellers or their Subsidiaries and confidentiality provisions protecting the Company IP.
(e) The conduct of the Business as currently conducted does not infringe or otherwise violate any Person’s Intellectual Property Rights and the conduct of the Business as conducted in the past four (4) years has not infringed or otherwise violated any Person’s Intellectual Property Rights (provided that the foregoing representation in this sentence is made only to the knowledge of Sellers with respect to patents). There is no Proceedings are claim pending or, to the Knowledge knowledge of SellerSellers, threatened that challenge in writing against Sellers, their Subsidiaries or the validity, ownership Company alleging infringement or use violation of any Person’s Intellectual Property owned Rights based on the conduct of the Business, and except as set forth on Schedule 3.10(e), the Sellers and their Subsidiaries have not received any written notice in the four (4) years prior to the date of this Agreement alleging infringement or violation of any Person’s Intellectual Property Rights (including, without limitation, demands to license any Person’s Intellectual Property Rights, or offers to license any Person’s patents) based on the conduct of the Business.
(f) To the knowledge of Sellers (i) no Person is infringing or otherwise violating any Company IP, and (ii) no such claims for the infringement of the Company IP are pending or threatened in writing against any Person by Sellers, their Subsidiaries or the Company.
(g) Sellers and their Subsidiaries have used and continue to use commercially reasonable actions to protect, preserve and maintain the confidentiality of the confidential information and trade secrets included in the Company IP. The Company Proprietary Software currently functions substantially in compliance with all applicable written, documentation and specifications and currently conform in all material respects to all published warranties or other contractual commitments relating to functionality and performance of the Company Proprietary Software. Except as set forth on Schedule 3.10(g), in the past four (4) years, (i) no customer or other Person has provided written notice to or brought any claim, suit, or allegation against Sellers or their Subsidiaries alleging any breach of contract or violation of law arising out of or related to the functionality or performance of any Company Proprietary Software or based on any reports provided by the Company; Company Proprietary Software and (vii) none of the Company Proprietary Software has not had notice been subject to widespread failure, recall, withdrawal, suspension, discontinuance due to performance issues, or required the providing of client credits, rebates, or payments due to performance issues.
(h) The Company has used commercially reasonable efforts intended to ensure that no Company Proprietary Software contains any “virus” or any other code designed or intended to: (i) disrupt, disable, harm, or otherwise impede in any manner the operation of, or provide unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (ii) damage or destroy any data or file without the user’s consent, and, to the Knowledge knowledge of Sellerthe Sellers, there no Company Proprietary Software contains any such “virus” or other code.
(i) Except as set forth on Schedule 3.10(i), no Company Proprietary Software is no basis forsubject to any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, a claim against Lesser GNU Public License, or Mozilla Public License) that requires or conditions 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 the licensing or distribution of any portion of any Company Proprietary Software free of charge.
(j) None of the source code included in the Company that Proprietary Software has been publicly disclosed and, other than in the operationsOrdinary Course, activities, products, Software, equipment or processes none of the source code included in the Company Proprietary Software has been put into escrow by Sellers, their Subsidiaries or the Company.
(k) Except for licenses granted to customers in the Ordinary Course, neither the Sellers nor their Subsidiaries nor the Company are bound by, and no Company IP is subject to, any Contract containing any covenant or other provision that in any way materially limits or restricts the ability of the Sellers or their Subsidiaries (as of the date hereof) or the Company (following the consummation of the Restructuring) to use, exploit, make available, assert, or enforce any Company IP or Company Proprietary Software anywhere in the world.
(l) All of the information technology and computer systems (including information technology and telecommunication hardware, communications networks and data centers) relating to the transmission, storage, maintenance, organization, presentation, generation, processing or analysis of data and information whether or not in electronic format, used in the Business infringe(the “IT Systems”) operate and perform in all material respects in a manner that permit the Sellers or their Subsidiaries (as of the date hereof) or will permit the Company (immediately following the consummation of the Restructuring) to conduct the Business as currently conducted. With respect to the IT Systems, misappropriateto the knowledge of the Sellers, violate within the four (4)-year period prior to the date of this Agreement: (i) there have been no successful, unauthorized intrusions or dilute breaches of the security thereof, (ii) there has not been any Intellectual Property material malfunction thereof that has not been remedied or replaced in all material respects or any such rights significant unplanned downtime or service interruption thereof that resulted in a material disruption of any other Person; the Business’ delivery of products and services, and (viiii) all security patches or security upgrades that are generally available therefor have been implemented in the Ordinary Course as reasonably determined by Company and/or Seller or their Subsidiaries as applicable. The Sellers and their Subsidiaries (in each case, solely to the Knowledge of Sellerextent related to the Business, no Person infringesthe Seller Contributed Assets or the Company Assumed Liabilities) have implemented, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Sellerand at the Closing the Company will have in place, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectcommercially reasonable backup and recovery technology processes.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Intellectual Property; Software. Other than (a) Schedule 2.15(a)(i) lists all trademarks, service marks, internet domain names, and patents (the "Intellectual Property") which are owned by any of the Dyn International Companies and which are Registered (as defined below) or material to their operations (collectively, the "Owned Intellectual Property"); and Schedule 2.15(a)(ii) identifies all Intellectual Property listed on Schedule 2.15(a)(i) that is to be transferred to a member of the Seller Group prior to the Closing pursuant to the Internal Alignment Transactions (the "Excluded IP Assets"). For purposes of this Agreement, no person or entity that is merely the exclusive licensee of any trademark, service ▇▇▇▇ or copyright, any application for registration thereof, any patent or application therefor, any Internet domain name, or any right under any of the foregoing will be deemed to be the owner thereof. For the purposes of this Agreement, Registered shall mean issued, registered, renewed or the subject of a pending application. For the avoidance of doubt, trademark, service ▇▇▇▇ or copyright will be deemed registered only if it is registered with a Governmental Entity.
(b) Schedule 2.15(b)(i) sets forth a list of the Licensed Intellectual Property (as defined below). Except as set forth on Schedule 5.12:
2.15(b)(ii) (aincluding, without limitation, any of the agreements or other documents specified therein) There are no Copyrightsand Schedule 2.15(b)(iii), Patent Rights which lists all items of Intellectual Property that constitute Excluded IP Assets, to the knowledge of CSC and Trademarks the Seller, each item of Owned Intellectual Property and each item of Intellectual Property used but not owned by any of the Dyn International Companies and material to their operations (including any assumed or fictitious names the "Licensed Intellectual Property") may be used by one or more of the Dyn International Companies, free and clear of any Liens, other than any obligation to pay royalties, license fees or other amounts with respect to any Licensed Intellectual Property under the license such Dyn International Company within received for such Licensed Intellectual Property or other terms, conditions or restrictions of such license. Except as specified in Schedule 2.15(b)(iv) (including, without limitation, any of the previous two agreements or other documents specified therein): (2i) yearsneither CSC, the Seller, nor any of the Dyn International Companies has received any written notice or been served any complaint (x) owned by challenging the validity or licensed enforceability of any Owned Intellectual Property, or (y) alleging that any person that is not one of the Dyn International Companies (a "Third Party") has any claim thereto or interest therein, and (ii) to the Company.
(b) There knowledge of CSC and the Seller, the Owned Intellectual Property is no Software valid and enforceable and is owned exclusively by one or licensed to more of the Company except for mass market Software licensed to the Company that is commercially available Dyn International Companies, free and subject to “shrink-wrap” or “click-through” license agreementsclear of any Liens.
(c) The Company Schedule 2.15(c)(i) lists all computer programs (other than off-the-shelf or otherwise commercially available computer programs) in current use by the Dyn International Companies and material to their operations (collectively, the "Software") and Schedule 2.15(c)(ii) identifies all Software listed on Schedule 2.15(c)(i) that is not a party to Contracts which relate to: (iincluded in the Excluded IP Assets. Except as specified in Schedule 2.15(c)(ii) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) (including, without limitation, any Softwareof the agreements or other documents specified therein): each item of Software may be used by one or more of the Dyn International Companies, free and clear of any Liens, other than market any obligation to pay royalties, license fees or other amounts with respect to any Software licensed to under the license such Dyn International Company received for such Software or other terms, conditions or restrictions of such license, and other than Liens that is commercially available and subject to “shrink-wrap” or “click-through” license agreementswould not result in a Company Material Adverse Effect.
(d) The Except as set forth on Schedule 2.15(d)(i) (including, without limitation, any of the agreements or other documents specified therein), and except for any violation of the following that would not result in a Company owns Material Adverse Effect: (i) neither CSC nor any Seller has received since January 1, 2002 any written notice or been served any complaint alleging (x) that a Dyn International Company is in material breach of any license under which such Dyn International Company received the entire right, title and interest in and toright to use any Licensed Intellectual Property or Software, or (y) that a Dyn International Company is infringing or otherwise violating any trademark, service ▇▇▇▇, copyright, trade secret or patent of any Third Party, and (ii) to the knowledge of CSC and the Seller, (w) no complaint has the been filed asserting such breach or such infringement or violation, and no valid and enforceable right to usebasis exists for same, (x) no Dyn International Company is in breach of any such license or is infringing any trademark, service ▇▇▇▇, copyright, trade secret or patent of any Third Party, (y) except as set forth on Schedule 2.15(d)(ii), the consummation of the transactions contemplated hereby will not give rise to any material breach of or termination right with respect to any such license, (z) no Third Party is infringing any Owned Intellectual Property or any trade secret owned by any of the Dyn International Companies and (iii) no licensor under any license agreement pursuant to which any Dyn International Company received a license to any Licensed Intellectual Property has given the Dyn International Company notice of its intention to cancel, terminate or fail to renew.
(e) Except as would not be reasonably likely to result in a Company Material Adverse Effect, to the knowledge of CSC and the Seller, all Software (i) performs in accordance with the documentation or other written material used in the Business connection with it; (ii) is in machine readable form and contains all current revisions; (iii) is free of material defects in operations; and (iv) does not contain any disabling devices.
(f) Except as currently conductedwould not be reasonably likely to result in a Company Material Adverse Effect, and to the Knowledge knowledge of Seller there CSC and the Seller, the source code for all Software that is no other Intellectual Property necessary for owned by any of the Company to conduct the Business as currently conducted.Dyn International Companies
(i) No infringementis sufficiently documented to enable a computer software developer of reasonable skill to understand, misappropriation or violation of any Intellectual Propertymodify, or any rights of publicity or privacy relating to the use of namesrepair, likenessesmaintain, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; compile and otherwise utilize such Software and (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect constitutes trade secrets that are valid and protectable and are not part of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership public knowledge or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectliterature.
Appears in 1 contract
Intellectual Property; Software. Other than (a) Schedule 5.12(a) sets forth a correct and complete list of all patents, trademark registrations, copyright registrations, industrial designs, and domain names and applications for any of the foregoing owned by the Company and its Subsidiaries (collectively, the “Registered IP”) and all unregistered trademarks owned by the Company and its Subsidiaries. The Company and its Subsidiaries do not own any service marks. Except as set forth on in Schedule 5.12:
(a) There are no Copyrights5.12(a), Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and/or its Subsidiaries own and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns possess the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property listed in Schedule 5.12(a), free and Software used clear of all Liens, not subject to any co-ownership, right to use or joint development interests by any third party, and immediately following the Closing, the Company and/or its Subsidiaries will continue to own and possess the entire right, title and interest to all of such Intellectual Property, free and clear of all Liens.
(b) Except as set forth on Schedule 5.12(b), the Company and its Subsidiaries own or have the right to use (pursuant to a valid IP License, in the Business case of Intellectual Property that is owned by another Person) all Intellectual Property that is material to the operation of their respective businesses as currently presently conducted.
(c) During the past three (3) years, and there have not been any pending, or to the Knowledge of Seller there is no the Company, threatened Actions related to any of the “Terphane” trademarks or any of the patents set forth on Schedule 5.12(a), including any such Actions involving claims of infringement or other Intellectual Property necessary for violation, validity, enforceability, ownership, title or the Company right to conduct the Business as currently conducteduse.
(d) During the past three (3) years, neither the Company nor any of its Subsidiaries has (i) No received any written notice of infringement, misappropriation or violation of any conflict with respect to Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, Property of any other Person has occurred (including any demands or results in any way from the operation of the Business or the use, sale or distribution of unsolicited offers to license any Intellectual Property owned by or licensed exclusively to the Company; from any other Person), (ii) no claim received any written notice challenging or questioning the validity, enforceability, use or ownership of any infringement, misappropriation, violation or dilution of any material Intellectual Property used by the Company or any such rights of any other Person has been made its Subsidiaries, or asserted in respect of the operation of the Business; (iii) threatened any Person with an Action for infringing or misappropriating any of its Intellectual Property. Neither the Company nor any of its Subsidiaries has granted any Person any continuing rights to any of its material owned Intellectual Property.
(e) To the Knowledge of the Company, no claim of invalidity of any Intellectual Property owned trademark, method or design used, no product manufactured and sold by, and no Key Development Product (as defined below) developed by the Company has been made by any other Person; (iv) no Proceedings are pending or, to or its Subsidiaries infringes or misappropriates the Knowledge of Seller, threatened that challenge the validity, ownership or use Intellectual Property of any Intellectual Property owned by third party; provided that the Company; foregoing representation and warranty shall not apply to any infringement or misappropriation of those third party trademarks set forth on Schedule 5.12(b) (v) the “Excepted Trademarks”), as to which the Seller represents and warrants only that the Company has not had notice of, and, and its Subsidiaries have used commercially reasonable efforts to avoid infringing such Excepted Trademarks. The term “Key Development Product” means any product developed under the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; projects identified by Seller as “Sealphane 10.64” (clear heat sealable/peelable films) and “Nano Coated PET” (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectclear barrier films coated with nano particles).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tredegar Corp)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights Section 4.11(a) of the Company Disclosure Schedule sets forth a list of all (i) registrations and Trademarks applications for registration of Owned Intellectual Property (including any assumed Patents, Trademarks, Copyrights and domain names), and for each item listed, indicates the record owner, the jurisdiction and issuance, registration or fictitious names used by the application number and date, as applicable, of such item (collectively, “Registered Intellectual Property”), (ii) material unregistered Trademarks, and (iii) material Company within the previous two (2) years) owned by or licensed Software. Each item of Registered Intellectual Property is subsisting and, except with respect to applications, is valid and, to the Knowledge of the Company, enforceable. None of the Registered Intellectual Property is subject to any maintenance fees or Taxes or any other actions that are necessary to maintain such Registered Intellectual Property, in any case falling due within ninety (90) days after the date hereof.
(b) There is no Software owned by The Company owns, or licensed has a valid right to use in the manner currently used, all Company Intellectual Property, free and clear of all Liens (other than Permitted Liens). No other Person has any ownership stake in any Owned Intellectual Property. Neither the Company, the operation of the Business infringes, misappropriates or otherwise violates, or has since the formation of the Company except for mass market Software licensed to infringed, misappropriated or otherwise violated, the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsIntellectual Property rights of any third party.
(c) No Owned Intellectual Property is subject to any outstanding judgment, injunction, Order, decree or agreement restricting the Company’s use or licensing thereof. The Company has not granted any exclusive license in any Owned Intellectual Property. None of the execution and delivery of this Agreement or any the agreements ancillary to this Agreement, or the consummation of the transactions contemplated by this Agreement, do or will contravene, conflict with, alter or impair the Company’s rights in any Company Intellectual Property. No Contract to which the Company is not a party or by which the Company is bound would upon Closing grant or purport to Contracts which relate to: (i) grant to any CopyrightsPerson any license, Patent Rights covenant not to sue or Trademarks; (ii) any Trade Secrets other rights related to Intellectual Property owned by Purchaser or licensed to any of its Affiliates (excluding the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsOwned IP).
(d) The Company owns the entire rightis not now, title and interest in and tonor has been since its formation, party to any Action, or has have otherwise received since its formation any written notice or claim from any Person, (i) alleging that the valid and enforceable right to useCompany or the conduct of the Business is infringing, the misappropriating or otherwise violating, or would infringe, misappropriate or otherwise violate by conducting any proposed or announced Business, any Intellectual Property of any Person (including any adverse offers to license) or (ii) challenging the ownership by the Company of or the validity or enforceability of any Owned Intellectual Property.
(e) To the Knowledge of the Company, no other Person has since the formation of the Company infringed, misappropriated or otherwise violated the terms of any Owned Intellectual Property.
(f) The Company has taken commercially reasonable steps to protect the confidentiality of the Trade Secrets and Software other material confidential information included in the Owned Intellectual Property, including by disclosing such Trade Secrets and other material confidential information only to those employees and other Persons with a need to know, and only subject to a binding nondisclosure agreement or other obligation of confidentiality. To the Knowledge of the Company, there have been no material breaches of any such nondisclosure agreements or obligations of confidentiality.
(g) No founder, current employee or independent contractor of the Company has expressly reserved any Intellectual Property under his or her assignment agreement where such Intellectual Property is used in the Business as currently conductedbusiness of the Company or has refused to provide any requested assistance in connection with the perfection, and to prosecution, maintenance or enforcement of the Knowledge of Seller there is no other Company’s rights in any material Owned Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringementdeveloped by that employee or contractor, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Sellerthe Company, threatened that challenge the validityis otherwise in violation of his or her assignment agreement. No funding, ownership facilities or use personnel of any Governmental Authority or institution of higher education were used in the development of any Owned Intellectual Property. All Company Intellectual Property used in or necessary to the conduct of the Business as currently conducted shall be owned or available for use by the Company; Company immediately after the Closing on terms and conditions substantially the same as those under which the Company owned or used such Company Intellectual Property immediately prior to the Closing.
(vh) the The Company has not had notice oflicensed or provided to any Person, andor allowed any Person to access or use, any source code for any Company Software, other than employees, contractors and consultants of the Company who have a need to access such source code and who owe confidentiality obligations to the Knowledge of SellerCompany with respect to such source code. No source code for any Company Software has been delivered or made available to any customer or escrow agent, there is no basis for, a claim against and the Company that the operations, activities, products, Software, equipment does not have any obligation (whether current or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or conditional) to make any such rights delivery or disclosure. The Company possess current copies of all object code, source code and operating manuals for all Company Software included in the Owned Intellectual Property.
(i) The Company does not use any artificial intelligence in connection with the production, design or manufacture of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectproducts.
Appears in 1 contract
Sources: Stock Purchase Agreement (OpenLocker Holdings, Inc.)
Intellectual Property; Software. Other (i) the Intellectual Property is all the intellectual property necessary to carry on the Business as currently being carried on by the Vendors as at the date hereof and is all that is so required as at the Closing Date;
(ii) except as set forth in a letter of even date from the Canadian Vendor to the Canadian Purchaser (the "Exception Letter"), the Vendors, as applicable, have good and valid legal and beneficial title to all of the Intellectual Property (except for any off-the-shelf software leased or licensed by any of the Vendors), free and clear of any Encumbrances and, except as set out in Schedule D, no Intellectual Property has been leased or licensed from a third party;
(iii) to the knowledge of the Vendors, there are no facts which would affect the validity, enforceability, scope or registrability (if applicable) of any of the Intellectual Property;
(iv) except as set forth in the Exception Letter, any patent, trademark or copyright registrations made by or in the name of any of the Vendors of or in the Intellectual Property are valid, subsisting and enforceable, except as any enforcement may be limited by bankruptcy, insolvency and other laws affecting the rights of creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction, and such patents, registered trademarks and registered copyrights are duly recorded in the names of the Vendors, as applicable, and to the knowledge of the Vendors, there is no reason as to why such registrations cannot be assignable to the Purchasers;
(v) except as set forth in the Exception Letter, no claims have been asserted by any third party with respect to, or challenging or questioning, the ownership, validity, enforceability or use of the Intellectual Property and the Vendors have no knowledge of any valid basis for any such claim;
(vi) except as set forth in the Exception Letter, the Vendors have not received any notice, complaint, threat or claim alleging infringement of and, to the knowledge of the Vendors, the conduct by the Vendors of the Business and the use by the Vendors of the Intellectual Property does not infringe any patent, trademark, trade name, trade secret, domain name, obligation -26- of confidence or other proprietary, contractual or intellectual property right of any third party;
(vii) to the knowledge of the Vendors no third party is infringing the rights of the Vendors with respect to the Intellectual Property;
(viii) except as set forth in the Exception Letter, complete and correct copies of all agreements relating to or affecting the Intellectual Property have been provided to the Purchasers and are fully assignable to the Purchasers, without cost or consent;
(ix) except as set forth in the Exception Letter, no royalty, payment or other fee is required to be paid by the Vendors to any third party in respect of the use or other exploitation of any of the Intellectual Property except as set out in the Contracts set out in Schedule D and except as required to maintain or renew the applications or registrations;
(x) all trade secrets of the Vendors are the unencumbered property of the Vendors, to the knowledge of the Vendors do not infringe upon the rights of any third party, were developed by the Vendors and their respective employees or consultants and to the knowledge of the Vendors there is no third party (except employees and consultants of the Vendors) who has a copy or knowledge of such trade secrets;
(xi) to the Vendors' knowledge all confidential information of any third party held by the Vendors under any obligations of confidentiality has been kept strictly confidential and not used, disclosed, disseminated or published unless otherwise permitted pursuant to an agreement listed in Schedule D;
(xii) except as set forth in the Exception Letter, the Vendors are not in breach of any agreement with any third party relating to the Intellectual Property or the intellectual property of such third party or will be as a result of the Vendors entering into this Agreement and to the knowledge of the Vendors, no third party is in breach of any agreement relating to the Intellectual Property;
(xiii) the Canadian Vendor is the owner of the Software and it has good and valid legal and beneficial title to the Software, including all Intellectual Property embodied therein (except as set out in the Contract List and Appendix 1 of the Exception Letter), free and clear of any Encumbrances or claims of any nature and no third party software or technology has been incorporated into the Software except as set out in the Contract List;
(xiv) other than maintenance agreements with existing customers of the Vendors listed in the Contract List, no Vendor has entered into any agreement, oral or written, requiring it to make updates, enhancements or modifications to the Software of any nature;
(xv) except as set forth in the Exception Letter and other than as set forth on in Schedule 5.12:M, no Vendor has supplied nor agreed to supply the source code to the Software to any third party under any circumstances;
(axvi) There all Software Contracts are no Copyrights, Patent Rights identified and Trademarks (including any assumed or fictitious names used by described in the Company within the previous two (2) years) owned by or licensed to the Company.Contract List; and
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (ixvii) any Copyrights, Patent Rights and all passwords to access or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of Software are held solely by DH, BR, and the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEmployees.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 4.16(a) of the Acuren Disclosure Schedule sets forth a true, Patent Rights correct and Trademarks (including any assumed or fictitious names used by complete list of all material unregistered Marks included in the Company within the previous two (2) years) owned by or licensed to the CompanyAcuren Intellectual Property.
(b) There Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in an Acuren Material Adverse Effect, (i) an Acuren Entity is no Software owned the sole and exclusive owner of all Acuren Registered Intellectual Property and all other Acuren Intellectual Property (including the Intellectual Property created by or licensed to employees within the Company scope of their employment by the Acuren Entities), free and clear of any Lien thereon (except for mass market Software licensed to any Permitted Lien), (ii) all Acuren Registered Intellectual Property is subsisting and (iii) all issuances and registrations included in the Company that is commercially available Acuren Registered Intellectual Property are valid and subject to “shrink-wrap” enforceable. No prior or “click-through” license agreementscurrent employee or officer or any prior or current consultant or contractor of the Acuren Entities has asserted any ownership in any Acuren Intellectual Property.
(c) The Company Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in an Acuren Material Adverse Effect, an Acuren Entity owns, licenses or otherwise has, and since December 31, 2021, has owned, licensed, or otherwise had, the valid right to use all Intellectual Property used in, or held for use for, the operation of the Acuren Entities’ businesses. Any material Intellectual Property licensed by an Acuren Entity is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or validly licensed to the Company; Acuren Entity pursuant to written, valid agreements. Neither the execution and (iii) delivery of this Agreement nor the consummation of the Mergers or other transactions contemplated by this Agreement will result in the termination or invalidity of any Software, other than market Software agreements pursuant to which the material Intellectual Property is licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsAcuren Entity.
(d) The Company owns the entire rightExcept as has not resulted, title and interest in and towould not reasonably be expected to result, individually or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conductedaggregate, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.in an Acuren Material Adverse Effect:
(i) No infringement(A) the operation of the Acuren Entities’ respective businesses, misappropriation as currently conducted and as conducted since December 31, 2021, is not infringing, misappropriating or violation of otherwise violating, and has not infringed, misappropriated or otherwise violated, (1) any Intellectual Property, Patents or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, Marks of any other Person has occurred or results in (2) any way from the operation of the Business or the use, sale or distribution of any other Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (viB) to the Knowledge since December 31, 2021, there has been no Action instituted or threatened in writing against any Acuren Entity alleging infringement, misappropriation or other violation of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned of another Person or exclusively licensed challenging the ownership, validity or enforceability of any Acuren Intellectual Property;
(ii) (A) no Person is infringing, misappropriating or otherwise violating, or since December 31, 2021, has infringed, misappropriated, or otherwise violated, any Acuren Intellectual Property and (B) since December 31, 2021, no Acuren Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or other violation of any such Acuren Intellectual Property;
(iii) each Acuren Entity takes and has taken commercially reasonable actions to protect the confidentiality of Trade Secrets included in the Acuren Intellectual Property;
(iv) all current and former officers and employees of, and consultants and independent contractors to, the Acuren Entities whose duties to the Acuren Entities reasonably contemplate or contemplated access to Trade Secrets included in the Acuren Intellectual Property have executed a valid and enforceable written agreement with the applicable Acuren Entity agreeing to protect the confidentiality of Trade Secrets included in the Acuren Intellectual Property;
(v) all current and former officers and employees of, and consultants and independent contractors to, the Acuren Entities whose duties to the Acuren Entities reasonably contemplate or contemplated the development of Intellectual Property (other than copyright rights in works of authorship authored by employees within the scope of their employment) have executed a valid and enforceable written agreement with the applicable Acuren Entity that assigns to such Acuren Entity all rights, title and interest in and to any and all Acuren Intellectual Property such Person contributed to the creation or development of, and, to the extent applicable, irrevocably waives such Person’s moral rights in, such Intellectual Property;
(vi) no Acuren Intellectual Property is subject to any Contract containing any covenant or other provision that limits or restricts in any manner, taken as a whole, the ability of the Acuren Entities: (A) to make, use, import, sell, offer for sale or promote any products or services made available by or on behalf of the Acuren Entities, and any products or services currently being developed (or already developed) by or for the Acuren Entities, anywhere in the world; or (B) to Selleruse, exploit, assert or enforce any of the Acuren Intellectual Property anywhere in the world;
(A) each case Acuren Entity takes and has taken commercially reasonable actions to maintain the operation of Acuren Software and Acuren IT Assets, including by implementing written information security policies that comply with applicable Laws, reasonable disaster recovery incident response plans with respect to such Acuren IT Assets, and (B) since December 31, 2021, there has been no failure in, or disruptions of, any Acuren Software or any Acuren IT Assets that has not been fully remedied; and
(viii) (A) the Acuren IT Assets are sufficient for the conduct of the businesses of the Acuren Entities, taken as a whole, as currently conducted, (B) no Software that is distributed as Open Source Software is a component of, has been incorporated into, linked to or distributed with any Acuren Software by or on behalf of any Acuren Entity in a manner that would (1) either currently or upon its distribution, require any Acuren Software (in whole or in part) to be licensed, sold or disclosed in source code form, (2) grant the right to make modifications or derivative works of any Acuren Software (in whole or in part), or (3) impose a requirement or condition that any Acuren Software be redistributable at no charge, (C), the Acuren Software does not contain any device or feature that disrupts, disables, or otherwise impairs the functioning of any such Acuren Software (except as could notpart of the intended functionality of such Acuren Software) or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” or other code or routines that permit unauthorized access, use, disablement or erasure of such Acuren Software, Acuren IT Assets or information or other data (or all parts thereof) or other Software or information technology assets of duly authorized users of such Acuren Software, and (D) the Acuren IT Assets have been reasonably maintained and tested for vulnerabilities with necessary patches and updates applied where appropriate.
(e) Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, reasonably be expected to have a in an Acuren Material Adverse Effect, no source code for any Acuren Software (i) has been provided, licensed or made available to any customer, business partner, escrow agent or other Person except to employees and third-party Software developers of an Acuren Entity solely for use, modification, creation of derivative works and/or disclosure in connection with their employment or engagement with such Acuren Entity, or (ii) is subject to any duty or obligation (whether present, contingent, or otherwise) of any Acuren Entity to deliver, license, or make available any such source code to any customer, business partner, escrow agent or other Person.
Appears in 1 contract
Sources: Merger Agreement (NV5 Global, Inc.)
Intellectual Property; Software. Other than (i) Each of the Company and the Company Subsidiaries owns, or possesses adequate licenses or other valid rights to use, all existing United States and foreign patents, trademarks, trade names, service marks, copyrights, trade secrets, know-how, software, databases and intellectual property rights and all applications therefor that are material to its business as set forth on Schedule 5.12:
currently conducted (athe "Company Intellectual Property Rights"); (ii) There all Company Intellectual ------------------------------------ Property Rights are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used either owned by the Company within or its subsidiaries free and clear of all Liens (other than Permitted Liens) or are used pursuant to a license agreement or are otherwise being validly used; (iii) each such license agreement is valid and enforceable and in full force and effect; (iv) neither the previous two (2) years) owned by or licensed Company nor any of the Company Subsidiaries is in default thereunder in any material respect, and to the knowledge of the Company, no corresponding licensor is in default thereunder in any material respect; (v) none of the Company Intellectual Property Rights materially infringes any material right of any person; (vi) there is no pending or, to the knowledge of the Company, threatened litigation, adversarial proceeding, administrative action or other challenge or claim relating to any Company Intellectual Property Rights; (vii) there is no outstanding order of a Governmental Authority relating to any Company Intellectual Property Rights; (viii) to the knowledge of Company, there is currently no infringement by any person of any Company Intellectual Property Rights; and (ix) the Company Intellectual Property Rights owned, used or possessed by the Company and the Company Subsidiaries is sufficient and adequate to conduct the business of the Company and the Company Subsidiaries in all material respects as such business is currently conducted.
(b) There is no Software owned by or licensed to The Company and the Company except for mass market Software licensed Subsidiaries have taken reasonable steps to protect, maintain and safeguard the Company that is commercially available Intellectual Property Rights, including any Company Intellectual Property Rights for which improper or unauthorized disclosure would impair its value or validity, and subject to “shrink-wrap” or “click-through” license agreementshave executed and required nondisclosure agreements and made any required filings and registrations in connection with the foregoing.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to conduct of the Company; and (iii) any Software, other than market Software licensed to business of the Company that is commercially available and subject to “shrink-wrap” the Company Subsidiaries as now conducted does not, infringe any valid patents, trademarks, trade names, service marks or “click-through” license agreementscopyrights of others. The consummation of the transactions contemplated hereby will not result in the loss or impairment of any Company Intellectual Property Rights.
(d) The Except in the ordinary course of business, neither the Company owns the entire right, title and interest in and to, nor any Company Subsidiary has licensed (or has the valid and enforceable right otherwise entered into any agreement permitting) any Person to use, the use or market any material Company Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conductedRights.
(e) The hardware and software of the Company and the Company Subsidiaries has, in all material respects, (i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating accurately and consistently processed date information during the transition from 1999 to the use year 2000, including, but not limited to accepting input, providing date output and performing calculations on dates or portions of namesdates, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; and (ii) functioned accurately and without interruption during the transition from 1999 to the year 2000, without any change in operations associated with the advent of the new century. There are no claim disputes concerning the functionality of any infringement, misappropriation, violation or dilution software products of any Intellectual Property the Company or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could notSubsidiary which, individually or in the aggregate, reasonably are or would be expected material to have the Company or such Company Subsidiary.
(f) To the knowledge of the Company, no employee of the Company or any of the Company Subsidiaries is in material violation or material breach of any term of any employment contract, patent disclosure agreement or any other contract or agreement with the Company or any other party, which is a Material Adverse Effectbreach or violation of provisions relating to the nondisclosure or confidentiality of intellectual property rights or of noncompete covenants designed to protect intellectual property rights.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Siemens Aktiengesellschaft)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: and its Subsidiaries (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire have all right, title and interest in and toto all Company Intellectual Property free and clear of all Liens and (ii) have the right and license or Client consent, as applicable, to possess or has access and use all Third-Party Software and Market Data and hold such rights and licenses free and clear of all Liens. The Company Intellectual Property and the valid and enforceable right to use, Third-Party Intellectual Property constitute all of the Intellectual Property and Software that is used or held for use in the conduct of the GIS Business as currently conducted, in the manner and to the Knowledge full extent as the GIS Business is conducted on the date hereof and, to the extent that the GIS Business is conducted in the same manner after the Closing as it is on the date hereof, as the GIS Business will be conducted immediately after the Closing. Consummation of Seller there is no the transactions contemplated hereby will not result in an impairment of the rights of any of the Company or its Subsidiaries under, or in any increase of any royalty, revenue share, license fees or the payment of any other fee with respect to, any Material Third-Party Intellectual Property necessary for Agreement. All Third-Party Software and Market Data is licensed directly by the owner thereof to the Company to conduct the Business as currently conductedor a Subsidiary.
(ib) No infringementNone of the Company or any of its Subsidiaries is, misappropriation and none of the Company or any of its Subsidiaries will be as a result of the consummation of the transactions contemplated hereby, in violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Material Third-Party Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending Agreement. No written or, to the Knowledge of Seller, threatened that challenge the validity, ownership oral claims or use of allegations with respect to misappropriation or infringement by any Company Intellectual Property have been made or are currently pending against any of the Company or any of its Subsidiaries or, to the Knowledge of Seller, are pending against any other Person or threatened by any Person. To the Knowledge of Seller, no third party is infringing or misappropriating any Company Intellectual Property.
(c) The Company and its Subsidiaries have taken reasonable steps to protect and preserve the proprietary nature and/or confidentiality of all Company Intellectual Property, including all material trade secrets and know-how owned by the Company; (v) Company and its Subsidiaries or used in relation to the GIS Business. Source Code for Company Software and any Source Code for any Third-Party Software in the possession or control of any of the Company and any of its Subsidiaries is a material trade secret of such Person, as the case may be, or the third-party owner thereof (as applicable), and has not had notice been disclosed by any of the Company or any of its Subsidiaries, or any of such Person’s Representatives to any Person other than pursuant to a duly executed confidentiality agreement and, in the case of Third-Party Software, permissibly and in accordance with the applicable Contract.
(d) No portion of the Company Software or any other Company Intellectual Property is subject to a license having terms that obligate the Company or any other Person (x) to provide or disclose the Source Code for the Company Software or any other Company Intellectual Property to the public or (y) to dedicate the Company Software or any other Company Intellectual Property, or any portion thereof, to the public domain.
(e) Section 2.13(e) of the Company Disclosure Schedule contains a true, correct and complete list of the Company Software. The Company and its Subsidiaries have the right, power and authority to sell, transfer, assign, convey and license the Company Software without liability to, or any requirement of, consent from, or obligation to pay royalties to, any other Person.
(f) Section 2.13(f) of the Company Disclosure Schedule contains a true, correct, complete and accurate list of all Third-Party Software and Market Data which is licensed under any Material Third-Party Intellectual Property Agreement (other than commonly available “shrink wrap” Software copyrighted by third parties, which is not material to the GIS Business) that is used by any of the Company and its Subsidiaries, or held for use by any of the Company and its Subsidiaries. The Third-Party Software and Market Data (including any commonly available “shrink wrap” Software copyrighted by third parties) is used pursuant to an agreement or license and each such agreement or license is valid and enforceable and in full force and effect and none of the Company or its Subsidiaries, or any licensor is in default under or in breach of any such license or agreement (nor has any event occurred which would, with passage of time, notice, or both, constitute a breach or default). The Company and its Subsidiaries monitor the use of Third-Party Software and Market Data for compliance with all applicable licenses and restrictions on use with respect thereto and the Company and its Subsidiaries are in compliance with all such restrictions.
(g) All Company Software have the features and functions described or referenced in and performs in accordance with the documentation and other written material used in connection with such Company Software and are in machine readable form. The Company Software and, to the Knowledge of Seller, there is no basis forthe Third-Party Software are free of material defects in features, a claim against the functions, performance and operations. The Company that the operationsSoftware and, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, the Third-Party Software contain no Person infringesDisabling Devices.
(h) The Source Code for the Company Software will compile into object code, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Sellerotherwise be capable of being installed and operated, in each case except as could notand when so installed will have all the features, individually or functions and performance described in the aggregatedocumentation and marketing and promotional materials pertaining to the Company Software and will execute on the computer platforms for which it is designed. Subject to ordinary course updates or enhancements for the benefit of Clients generally, reasonably such modifications or customizations to Source Code as may be expected implemented with respect to have a Material Adverse Effectparticular Client pursuant to such Client’s request, and corresponding updates or revisions to documentation concerning the Company Software, all Source Code and other documentation concerning the Company Software is correct, accurate and sufficiently documented to enable a software developer of reasonable skill to understand, modify, debug, enhance, compile, support and otherwise utilize all aspects of the Company Software, without reference to other sources of information.
Appears in 1 contract
Sources: Stock Purchase Agreement (PNC Financial Services Group Inc)
Intellectual Property; Software. Other than (a) Except as set forth on ------------------------------- in Section 3.13(a) of the Disclosure Schedule 5.12:
or as otherwise would not have a Company Material Adverse Effect, the Company or one of the Subsidiaries is the owner of (afree and clear of all liens, encumbrances and other restrictions), or is a licensee under a valid written license for, all items of intangible property, including, without limitation, copyrights, trademarks and service marks (whether or not registered or applied for registration), domain names, trade names, logos, trade dress, brand names, patents, patent applications, inventions (whether or not patentable and whether or not reduced to practice), trade secrets and copyrights (whether or not registered or applied for registration) and all registrations, applications and renewals for, and goodwill associated with any of the foregoing; and all trade secrets, confidential information, ideas, formulae, compositions, know-how, technical and computer data, documentation and software, financial, business and marketing plans and materials, customer and supplier lists and related information and all other proprietary rights (collectively, the "Intellectual Property"), which are used in the operation of the business of the Company and the Subsidiaries as currently conducted. There are no Copyrightsclaims pending or, Patent Rights and Trademarks (including to the Company's or any assumed Subsidiary's knowledge, threatened, that the Company or fictitious names any of the Subsidiaries is in violation of any intangible property rights of any third party or contesting the validity, enforceability, use or ownership of any of the Intellectual Property owned or used by the Company within the previous two (2) years) owned by or licensed any Subsidiary, and to the Company's or any Subsidiary's knowledge, there are not grounds for the same. To the Company's or any Subsidiary's knowledge, no third party has interfered with, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights owned or used by the Company or any Subsidiary. The Company and each Subsidiary has taken what it believes, based on its reasonable business judgment, to be reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. All payments, including maintenance fees, for all Intellectual Property filings and registrations and pending and issued patents have been made through the date hereof with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. All Intellectual Property owned or used by the Company or any of the Subsidiaries immediately prior to the Effective Time will be owned or available for use by the Surviving Corporation and the Subsidiaries on substantially identical terms and conditions immediately subsequent to the Effective Time, except as would not have a Company Material Adverse Effect.
(b) There is no Software owned by or licensed to Section 3.13 of the Company except for mass market Software licensed to the Company that is commercially available Disclosure Schedule sets forth a complete and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate tocorrect list of all: (i) patented or registered Intellectual Property and pending patent applications or other applications for registrations of Intellectual Property owned or filed by or on behalf of the Company or any Copyrights, Patent Rights or Trademarksof its Subsidiaries; (ii) any Trade Secrets trade names and material unregistered trademarks and service marks owned or used by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Businessits Subsidiaries; (iii) no claim of invalidity of any Intellectual Property computer software owned or used by the Company has been made by or any of its Subsidiaries (other Personthan commercially available software with an annual license fee of less than $25,000); and (iv) no Proceedings are pending or, to licenses or similar agreements or arrangements for the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) to which the Company has not had notice ofor any Subsidiary is a party, andeither as licensee or licensor (other than those with an annual license fee of less than $25,000), to the Knowledge of Sellerexcept in each case, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes as otherwise indicated in Section 3.13 of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectDisclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Asi Solutions Inc)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights Schedule 4.19 sets forth a true and Trademarks correct list of (including any assumed i) all registered Intellectual Property (or fictitious names used by the Company within the previous two (2) yearsapplications therefor) owned by Company or licensed to any of its Subsidiaries (and the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrightsjurisdiction where registered), Patent Rights or Trademarks; (ii) all material agreements (excluding shrink wrap licenses or licenses with respect to off-the-shelf-software) whereby the Company or any Trade Secrets owned by or licensed of its Subsidiaries is expressly granted the right to the Company; use any Intellectual Property that it does not own, and (iii) any Software, other than market Software licensed to all agreements whereby the Company or any of its Subsidiaries grants an express license to any third party to use any Intellectual Property that is commercially available and subject to “shrink-wrap” the Company or “click-through” license agreements.
(d) one of its Subsidiaries owns. The Company owns the entire righthas paid all governmental maintenance fees related to any such registered Intellectual Property identified pursuant to (i) above. The Company and each of its Subsidiaries has good and marketable title to (free and clear of all Liens, title and interest in and toexcept Permitted Exceptions), or has the possesses adequate licenses or other valid and enforceable right to userights under, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other all Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the continued operation of the businesses of the Company and its Subsidiaries in the ordinary course of business as previously and currently operated and as proposed to be operated pursuant to the Drilling Contracts as of the Closing (the “Business or IP), including, without limitation, the usedesign, sale or distribution construction and exploitation of any Intellectual Property owned by rigs or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation other equipment being constructed or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned developed by the Company has been made by any other Person; (iv) no Proceedings are pending or, to and its Subsidiaries as of the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice ofClosing, and, to the Knowledge of Sellerthe Company, there is no basis forthe conduct of the business as described above does not and will not misappropriate or infringe upon the Intellectual Property of any third party, except where the failure to hold any such title, license or other right, or where any such misappropriation or infringement, would not constitute or be reasonably likely to constitute, a claim Material Adverse Effect. At any time since June 1, 2004, no Person has made or, to the Knowledge of the Company, threatened to make, a Claim against the Company or any of its Subsidiaries alleging that any of them violated, infringed, misappropriated or otherwise improperly used any Intellectual Property. No consent of any person will be required for the operations, activities, products, Software, equipment or processes use of any of the material Business infringeIP by the Surviving Company following the Closing to the extent such use is consistent with the use by the Company or its Subsidiaries in the ordinary course of business as previously and currently operated and as proposed to be operated pursuant to the Drilling Contracts as of the Closing. The execution, misappropriate, violate or dilute any Intellectual Property or any such rights delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not (x) constitute a breach of any other Person; and instrument or agreement granting rights to any material Business IP to or by the Company or its Subsidiaries, (viy) to the Knowledge of Sellerthe Company, no Person infringescause the forfeiture or termination or give rise to a right of forfeiture or termination of any Business IP, misappropriates or violates (z) to the Knowledge of the Company, otherwise impair the right of the Surviving Company, following the Closing, to use or otherwise exploit, assert or enforce any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectBusiness IP.
Appears in 1 contract
Intellectual Property; Software. Other than (a) Section 4.17(a) of the Cove Disclosure Schedule sets forth a complete and correct list in all material respects of all patents, Trademarks, copyright registrations, and applications therefor, applicable to or used in the business of Cove, together with a complete list of all licenses granted by or to Cove with respect to any of the above (collectively, "Cove Intellectual Property"). To Cove's Knowledge, all Cove Intellectual Property is owned by Cove, free and clear of all Liens, except where the failure to own or use such Cove Intellectual Property would not have a Material Adverse Effect on Cove, or is used by Cove pursuant to valid licenses. To Cove's Knowledge, Cove is not currently in receipt of any notice of any violation or infringement of, and Cove is not knowingly violating or infringing in any material respect, the rights of others in, or to any patent, unpatented invention, trademark, tradename, service mark, copyright, trade secret, know-how, design, process or other inta▇▇▇▇le asset.
(i) Except as set forth on Schedule 5.12:
(a4.17(b)(i) There are no Copyrightsof the Cove Disclosure Schedule, Patent Rights and Trademarks (including any assumed Cove has title to all material computer software owned or fictitious names used by Coce (other than "off-the-shelf" software not customized for its use ("Owned Software")), free and clear of all Liens. Except as set forth in Section 4.17(b)(i) or (ii) of the Company within Cove Disclosure Schedule, the previous two (2Owned Software is not dependent on any Licensed Software in order to operate fully in the manner in which it is intended. The source code of any Owned Software has not been published or knowingly disclosed to any other parties, except pursuant to contracts requiring such other parties to keep the source code of any Owned Software confidential. Section 4.17(b)(i) years) owned by or licensed of the Cove Disclosure Schedule sets forth the names of any parties to whom the Companysource code has been disclosed.
(bii) There Section 4.17(b)(ii) of the Cove Disclosure Schedule sets forth a list of the agreements which require the payment of license fees, rents, royalties or other charges by Cove with respect to all software (other than "off-the-shelf" software that has not been customized for its use) under which Cove is no a licensee, lessee or otherwise has obtained the right to use (the "Licensed Software"). Cove has the right and license to use, sublicense, modify and copy Licensed Software, free and clear of any limitations or encumbrances, except as may be set forth in Section 4.17(b)(ii) of the Cove Disclosure Schedule or in the agreements referenced therein. Cove is in material compliance with all provisions of each license, lease or other similar agreement pursuant to which it has rights to use the Licensed Software. Except as disclosed on Section 4.17(b)(ii) of the Cove Disclosure Schedule, none of the Licensed Software owned has been incorporated into or made a part of any Owned Software or any other Licensed Software. Cove has not published or knowingly disclosed any Licensed Software to any other party except, in the case of Licensed Software which it leases or markets to others, in accordance with and as permitted by any license, lease or licensed similar agreement relating to the Company Licensed Software and except for mass market pursuant to contracts requiring such other parties to keep the Licensed Software licensed confidential. Section 4.17(b)(ii) of the Cove Disclosure Schedule sets forth the names of any parties to whom the Company that is commercially available and subject Licensed Software has been disclosed. As of the date hereof, to “shrink-wrap” or “click-through” license agreementsCove's Knowledge, no party to whom Cove has disclosed Licensed Software has breached such obligation of confidentiality.
(ciii) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; Owned Software and (iii) any Software, other than market Licensed Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software constitute all software used in the Business as currently conductedbusiness of Cove (collectively, and the "Cove Software"). To the best of Cove's Knowledge, the transactions contemplated herein will not cause a breach or default under any license, lease or similar agreement relating to Cove Software or impair the ability of Cove to use Cove Software subsequent to the Knowledge of Seller there Effective Time in the same manner as Cove Software is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results used by Cove. Cove is not knowingly infringing in any way from the operation of the Business or the use, sale or distribution of material respect any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such intellectual property rights of any other Person has been made person or asserted in entity with respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice ofCove Software, and, except as set forth in Section 4.17(b)(iii) of the Cove Disclosure Schedule, to Cove's Knowledge, no other person or entity is infringing any intellectual property rights of Cove with respect to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Cove Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Euroseas Ltd.)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsExcept as do not and would not reasonably be expected to have a Company Material Adverse Effect, Patent Rights (i) Section 2.17(a) of the Company Disclosure Schedule sets forth an accurate and Trademarks complete list of all (including any assumed A) patents and patent applications, (B) trademark or fictitious names used service ▇▇▇▇ applications and registrations, (C) domain name registrations, and (D) copyright registrations and applications, in each case, owned or filed by the Company within or any of its Subsidiaries, and (ii) either the previous two Company or a Subsidiary of the Company owns, free and clear of all Liens (2) years) owned by other than Permitted Liens), or licensed has a valid and continuing license to use, all Intellectual Property and Software used in connection with the Companybusiness of the Company and its Subsidiaries as currently conducted.
(b) There Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Company’s Knowledge as of the date of this Agreement, the conduct of the business as currently conducted by the Company and its Subsidiaries does not infringe, misappropriate, dilute or otherwise violate any Person’s Intellectual Property, (ii) as of the date of this Agreement, there is no Software such claim pending or, to the Company’s Knowledge, threatened against the Company or its Subsidiaries, (iii) to the Company’s Knowledge as of the date of this Agreement, except as set forth in Section 2.17(b) of the Company Disclosure Schedule, no Person has or is infringing, misappropriating or otherwise violating any Intellectual Property owned by the Company, and (iv) no such claims are pending or licensed to threatened in writing against any Person by the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsits Subsidiaries.
(c) The Company is not a party and its Subsidiaries have taken reasonably necessary steps to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets protect and preserve the confidentiality of all material trade secrets and other material confidential information owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsand/or its Subsidiaries.
(d) The Company owns maintains control of copies of the entire right, title and interest Software included in and to, or has the valid and enforceable right to use, the Intellectual Property which the Company or its Subsidiaries license from third Persons or otherwise use and Software used in the Business as currently conducteddocumentation (including user guides) reasonably necessary to use such Software, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to maintains control over the use of names, likenesses, voices, signatures source code and/or such other documentation (including user guides and specifications) for all material proprietary Software developed or biographical information, of any other Person has occurred or results in any way from created by the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property Company and owned by the Company has been made by or any other Person; of its Subsidiaries (iv“Company Proprietary Software”) no Proceedings are pending orand/or such documentation (including user guides and specifications) reasonably necessary to use, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) maintain and modify the Company has not had notice ofProprietary Software. The Company Proprietary Software, and, to the Knowledge of SellerCompany’s Knowledge, there is no basis for, a claim against the material Software included in the Intellectual Property which the Company that the operationsor its Subsidiaries license from third Persons or otherwise use functions substantially in compliance with applicable written, activitiespublished documentation and specifications, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, do not and would not reasonably be expected to have a Company Material Adverse Effect. As used in this Agreement, “Software” means all computer programs, including any and all software implementations of algorithms, models and methodologies whether in source code, object code or other form, software databases and compilations, including any and all data and collections of data, descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing. Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries own, lease or license all Software, hardware, databases, computer equipment and other information technology necessary for the operations of the Company’s and its Subsidiaries’ businesses as currently conducted.
Appears in 1 contract
Sources: Merger Agreement (Alexanders J Corp)
Intellectual Property; Software. Other than (i) The Company and its Subsidiaries own or possess adequate rights or licenses to use all Intellectual Property necessary to the conduct of their respective businesses and such Intellectual Property rights and licenses are perpetual, transferable without any limitation and require no royalty or other payments in connection therewith, and, to the knowledge of the Company, such Intellectual Property represents all material intellectual property rights necessary to the conduct of the their business as set forth on Schedule 5.12:
(a) now conducted and as presently contemplated to be conducted. There are no Copyrights, Patent Rights and Trademarks (including any assumed conflicts with or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity infringements of any Intellectual Property owned by the Company has been made or any of its Subsidiaries by any other Person; (iv) no Proceedings are pending orthird party, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has except for such infringements and conflicts which could not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The conduct of the business of the Company and its Subsidiaries as currently conducted or contemplated to be conducted does not conflict with or infringe any proprietary right or Intellectual Property of any third party, including, without limitation, the transmission, reproduction, use, display or modification of any content or material (including framing, and linking web site content) on a web site, bulletin board or other like medium hosted by or on behalf of the Company or any of its Subsidiaries, except for such infringements and conflicts which could not reasonably be expected to have a Material Adverse Effect. There is no claim, suit, action or proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary: (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the Company's or any Subsidiary's ownership or use of, or the validity or enforceability of any Intellectual Property. The total revenue derived from the Company's and its Subsidiaries' line of SmartFax Plus and SmartFax Pro products and services is less than two and one-half percent (2.5%) of the Company's and its Subsidiaries combined total revenue between January 1, 2010 and May 31, 2010.
(ii) A complete and current list of registered trademarks or copyrights, issued patents, applications thereof, or other forms of registration anywhere in the world that is owned by the Company or a Subsidiary ("Listed Intellectual Property") and the owner of record, date of application or issuance and relevant jurisdiction as to each has been Previously Disclosed. All Listed Intellectual Property is owned by the Company or a Subsidiary, free and clear of security interests, liens, encumbrances or claims of any nature. All Listed Intellectual Property is subsisting and, to the knowledge of the Company, is valid and enforceable and all renewal fees and other maintenance fees that have fallen due on or prior to the effective date of this Agreement have been paid. No Listed Intellectual Property is the subject of any proceeding before any governmental, registration or other authority in any jurisdiction, including any office action or other form of preliminary or final refusal of registration. The consummation of the transactions contemplated hereby will not alter or impair any Intellectual Property that is owned by or used pursuant to a license by the Company or a Subsidiary.
(iii) A complete list of all material agreements relating to Intellectual Property to which the Company or a Subsidiary is a party, subject or bound (the "Material Intellectual Property Contracts") has been Previously Disclosed. Each Material Intellectual Property Contract: (i) is valid and binding on the Company or a Subsidiary, as the case may be, and, to the knowledge of any director or senior executive at the Company, the counterparties thereto, and is in full force and effect and (ii) upon consummation of the transactions contemplated hereby shall continue in full force and effect without penalty or other adverse consequence Neither the Company or a Subsidiary, on the one hand, nor, to the knowledge of any director or senior executive at the Company, a counterparty thereto, is in breach or default of any material contractual obligation under any of the Material Intellectual Property Contracts.
(iv) The Company and its Subsidiaries have taken reasonable measures to protect the secrecy, confidentiality and value of all of their Intellectual Property and, to the knowledge of any director or senior executive at the Company, there has been no unauthorized disclosure of any data or information which, but for any such unauthorized disclosure, the Company would consider to be a trade secret owned by the Company or any of its Subsidiaries.
(v) Each employee who in the regular course of his employment may create programs, modifications, enhancements or other inventions, improvements, discoveries, methods or works of authorship and all consultants have signed an assignment or similar agreement with the Company or the Subsidiary confirming the Company's or the Subsidiary's ownership or, in the alternate, transferring and assigning to the Company or the Subsidiary all right, title and interest in and to such programs, modifications, enhancements or other inventions including copyright and other intellectual property rights therein.
(vi) The operating and applications computer software programs and databases owned or used by the Company and its Subsidiaries that are material to the conduct of their business as now conducted and as presently contemplated to be conducted (collectively, the "Software") has been Previously Disclosed.
(vii) The Company and its Subsidiaries possess or have access to the original (or, if owned by a third party, copies) of all documentation and all source code, as applicable for all the Software. Upon consummation of the transactions contemplated by this Agreement, the Company and its Subsidiaries will continue to own all the Software owned by them, free and clear of all claims, liens, encumbrances, obligations and liabilities and, with respect to all agreements for the lease or license of Software which require consents or other actions as a result of the consummation of the transactions contemplated by this Agreement in order for the Company or its Subsidiaries to continue to use and operate such Software after the Closing Date, the Company and its Subsidiaries will have obtained such consents or taken such other actions so required.
(viii) No open source or public library software, including any version of any software licensed pursuant to any GNU or other public license, is, in whole or in part, embodied or incorporated in the Intellectual Property of the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries is otherwise bound by any terms thereof.
(ix) For the purpose of this Section 3(x), "Intellectual Property" shall mean all of the following: (A) trademarks and service marks, trade dress, product configurations, trade names and other indications of origin, applications or registrations in any jurisdiction pertaining to the foregoing and all goodwill associated therewith; (B) inventions, discoveries, improvements, ideas, know-how, formula methodology, processes, technology, software (including password unprotected interpretive code or source code, object code, development documentation, programming tools, drawings, specifications and data) and applications and patents in any jurisdiction pertaining to the foregoing, including re-issues, continuations, divisions, continuations-in-part, renewals or extensions; (C) trade secrets, including confidential information and the right in any jurisdiction to limit the use or disclosure thereof; (D) copyrights in writings, designs software, mask works or other works, applications or registrations in any jurisdiction for the foregoing and all moral rights related thereto; (E) database rights; (F) Internet Web sites, domain names and applications and registrations pertaining thereto and all intellectual property used in connection with or contained in all versions of the Company's Web sites; (G) rights under all agreements relating to the foregoing; (H) books and records pertaining to the foregoing; and (I) claims or causes of action arising out of or related to past, present or future infringement or misappropriation of the foregoing.
Appears in 1 contract
Intellectual Property; Software. Other (i) Exhibit A contains a complete and accurate list and description of the Software, all of which is owned by the Company. Also included in Exhibit A is a separate list of all software products, other than the Software, which the Company (or any of its Subsidiaries) sells, licenses or otherwise distributes. Except as set forth on Schedule 5.12:
(ain Section 4(n) There are no Copyrightsof the Disclosure Schedule, Patent Rights and Trademarks subject to copyrights of third parties in Embedded Products as disclosed in Section 4(n), and subject to copyrights of Software Authors where the Company has received a perpetual exclusive license of the copyrighted Software, the Company is the exclusive owner of all rights to the Software (including the exclusive right to make, copy, sell, exploit, modify, and provide to others the use of the Software and all derivative works thereof) free and clear of any assumed Security Interests. The Company and its Subsidiaries are in actual and sole possession of the complete source code of the Software (excluding any Embedded Products) and all related documentation except for any source code and related documentation that are in possession of an escrow agent pursuant to an agreement listed in Section 4(n) of the Disclosure Schedule, and have not disclosed such source code or fictitious names used documentation to any third party, except for disclosure to employees and agents of the Company and its Subsidiaries pursuant to agreements sufficient to protect the Company's and its Subsidiaries' Intellectual Property rights therein. Each Software Author made his or her contribution to the Software within the scope of employment with the Company (or its Subsidiaries), as a "work made for hire," was directed by the Company within or its Subsidiaries to work on the previous two Software (2and in the case of Software Authors in Germany, his or her contribution has resulted in a statutory license of the Company or any of its 22 Subsidiaries in any Software pursuant to Section 69b of the German Copyright Act) years) owned by or licensed as an independent contractor pursuant to a written agreement in which all work product and the Company.
(b) There is no Software owned by or Intellectual Property rights therein, including copyrights, were perpetually and exclusively licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” (or “click-through” license agreementsits Subsidiaries).
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) Except as set forth in Section 4(n) of the Disclosure Schedule:
(A) there are no material defects in the Software, and there are no material errors in any Trade Secrets owned related documentation, which defects or errors would in any material respect affect the Buyer's or any licensee's use of the Software or the functioning of the Software in accordance with the specifications for the Software published by the Company and its Subsidiaries (excluding any "bugs" arising or licensed discovered in the normal course of business which as a whole are not material to the overall function of the Software); the Software has all the features described in the related user manual or advertisements and materials made available to the Company; 's and its Subsidiaries' customers and the Software does not, to the Knowledge of the Company or the Sellers, contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (iiias these terms are commonly used in the computer software industry), or other software routines or hardware components designed to permit unauthorized access, to disable or erase software, hardware, or data or to perform any other similar type of functions;
(B) except with respect to Embedded Products and End-User Licensees and the rights of distributors listed in Section 4(n) of the Disclosure Schedule pursuant to the agreements listed therein, no Person, entity or Government Body other than the Company or its Subsidiaries has any interest of any kind or nature in or with respect to the Software, other than market Software licensed to including the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, make, copy, sell, exploit, modify and provide to others the use of, the Software and all derivative works thereof, and no Government Body funding (other than funds provided to the Company by the Investor) or Government Body, university or college facilities were used in the development of the Software, and the Software was not developed pursuant to a contract with any Person (except for Software Authors hired by the Company or its Subsidiaries), and the Company and the Sellers have no Knowledge of any Basis or agreement that would preclude the Buyer from making any change to the Software or combining it with other software in any lawful manner;
(C) the Company and the Sellers have no Knowledge that any third party is violating or has violated any of the Company's or its Subsidiaries' proprietary rights in the Software; no third party has any right to compensation from the Company or its Subsidiaries by reason of, the use, exploitation, or sale of the Software; there are no restrictions on the ability of the Company (or its Subsidiaries, or any of their respective successors or assignees) to use, sell or otherwise exploit the Software, and such use, sale or exploitation does not obligate the Company or its Subsidiaries (or any successor or assign of the Company or its Subsidiaries, including the Buyer) to pay any royalty, fee, or other compensation to any Person; and the Company and the Sellers have not received any notice and do not have any Knowledge of any complaint, assertion, threat, or allegation inconsistent with the preceding statements in this paragraph.
(iii) The Company has provided access to the Buyer to all records of the Company and its Subsidiaries with respect to Software fixes (including fixes currently in progress), problem lists, 23 maintenance of the Software, and customer complaints. All material warranty claims within the last three (3) years (including any pending claims) relating to the Software are described in Section 4(n) of the Disclosure Schedule.
(iv) Section 4(n) of the Disclosure Schedule contains a complete list of all third party software which is a component of or incorporated in or specifically required to develop, use, modify or support any of the Company's or its Subsidiaries' products ("Embedded Products"), any license, sublicense or agreement relating thereto and a list of any restrictions on the Company's or its Subsidiaries' right to use, incorporate or distribute the Embedded Products. The Company and its Subsidiaries are not in violation of any license, sublicense or agreement with respect to an Embedded Product.
(v) Section 4(n) of the Disclosure Schedule lists, by owner, the Intellectual Property, other than the Software, owned by the Company and its Subsidiaries (excluding any licenses of packaged "off-the-shelf" software products). Except as set forth in Section 4(n) of the Disclosure Schedule, the Company and its Subsidiaries have good, sole and marketable title to all Intellectual Property rights described in Section 4(n), free and clear of any Security Interests (other than Security Interests of the vendors of Intellectual Property purchased by the Company and paid for on an installment basis), and the Company and Sellers are not aware of any claims that such Intellectual Property rights are being challenged in any way.
(vi) Except as set forth in Exhibit A or Section 4(n) of the Disclosure Schedule:
(A) the Company and its Subsidiaries have no copyrights, registrations or pending applications for registration of copyrights;
(B) no Person has any right of renewal, reversion, or termination with respect to any copyrights owned by the Company or its Subsidiaries or any rights under such copyrights;
(C) the Company and its Subsidiaries have no common law or registered trademarks, trade names, service marks or pending applications to register trademarks, trade names, or service marks, related to the Software or any other products or services sold or licensed by it or which it otherwise uses in the conduct of its business;
(D) the Company and its Subsidiaries do not own any patents or applications for patents that relate to or affect the Software, any other products sold or licensed to End-Users by them or any Intellectual Property rights owned by them; and
(E) there are, and have been, no options, licenses or agreements of any kind relating to any of the Intellectual Property owned by the Company or its Subsidiaries or to the use, manufacture, sale or other exploitation of products or services based on or embodied in such Intellectual Property.
(vii) The Company and Software used in its Subsidiaries have taken commercially reasonably security measures to protect the Business as currently conductedsecrecy, confidentiality, and value of the portions of Intellectual Property owned by them which constitute trade secrets (the "Trade Secrets"), and any other persons who have knowledge of or access to information relating to such Trade Secrets have been put on notice and, if 24 appropriate, have entered into agreements that the Trade Secrets are proprietary to the Company (or its Subsidiaries) and are not to be divulged (except as authorized by the Company or its Subsidiaries) or misused. The Trade Secrets are not part of the public domain, and, to the Company's and the Sellers' knowledge, have not been used, divulged, or appropriated for the benefit of any Persons other than the Company or its Subsidiaries (except with the Company's consent).
(viii) None of the Company and its Subsidiaries has infringed or misappropriated, and none is infringing or misappropriating any Intellectual Property of another Person and there is no claim pending, or to the Knowledge of Seller there is no other Intellectual Property necessary for the Company and the Sellers, threatened, against the Company or a Subsidiary with respect to conduct the Business as currently conducted.
(i) No infringement, any alleged infringement or misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by another Person. The Company and the Sellers have no Knowledge that any Person is infringing or licensed exclusively misappropriating any Intellectual Property of the Company or its Subsidiaries.
(ix) Section 4(n) of the Disclosure Schedule sets forth an action plan and time line to provide product improvements to the Company; 's principal product specified therein (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect"Product Action Plan").
Appears in 1 contract
Intellectual Property; Software. Other than (a) Except as, individually or in the aggregate, would not reasonably be likely to have a material adverse effect on the business or financial condition of the Company and the Company's Subsidiaries taken as a whole, and except as set forth on Schedule 5.12:
in Section 3.18 of the Company Disclosure Letter, the conduct of the business of the Company and the Company Subsidiaries does not, to the knowledge of the Company, infringe upon any Intellectual Property (aas defined below) There right of any Person; and except as set forth in Section 3.18 of the Company Disclosure Letter and except for such matters as are not reasonably likely to result in liability to the Company or any of the Company Subsidiaries in excess of $100,000 individually or in the aggregate for all related claims, there are no Copyrightspending or, Patent Rights and Trademarks (including to the knowledge of Company, threatened proceedings or litigation by any assumed or fictitious names used person against the use by the Company within or the previous two (2) years) Company Subsidiaries of any name, corporate name, fictitious name, software, trademarks, trade names, service marks, service names, logos, assumed names, copyrights, trade secrets, patents and all registrations, and applications therefor, and all good will with respect to the foregoing, which are owned by the Company or licensed to any of the Company Subsidiaries or used in the operation of the Company's or any of the Company Subsidiaries' business as currently conducted (collectively, the "Intellectual Property").
(b) There is no Software owned by or licensed to Except as set forth in Section 3.18 of the Company except for mass market Software licensed to Disclosure Letter, the Company that is commercially available owns or has valid licenses or other rights to use the Intellectual Property which are necessary to permit the Company to conduct its operations as currently conducted and subject which are material to “shrink-wrap” or “click-through” license agreementsits operations.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available Subsidiaries have conducted an analysis of, and subject to “shrink-wrap” or “click-through” license agreements.
developed a compliance program (dthe "Compliance Program") The Company owns the entire right, title and interest in and with respect to, or has the valid effect of Year 2000 (including the correct processing and enforceable right to usecalculation of dates prior to, during and after the Intellectual Property Year 2000) upon the software, telecommunications and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or automated processes of the Business infringeCompany and the Company Subsidiaries. The Company believes that the costs of implementing the Compliance Program and completing the modifications necessary to become Year 2000 compliant, misappropriateif any, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably will not be expected to have a Material Adverse Effectmaterial.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Compass International Services Corp)
Intellectual Property; Software. Other than as (a) Set forth on Section 4.13(a) to the Seller Disclosure Letter is a true, correct, and complete list of all Owned Intellectual Property, including all (i) issued Patents and Patent applications, (ii) Trademark registrations and applications and material unregistered Trademarks, (iii) Copyright registrations and applications, (iv) domain names and social network service accounts of Seller, and (v) Software material to the Business. Seller is the sole and exclusive legal and beneficial owner and, with respect to applications and registrations, record owner of all of the Intellectual Property required to be set forth on Schedule 5.12:
(aSection 4.13(a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the CompanySeller Disclosure Letter, and all such Intellectual Property is subsisting, valid, and enforceable. Seller has not granted any Person any right to control the prosecution or registration of any Owned Intellectual Property, or to commence, defend, or otherwise control any Proceeding with respect to any Owned Intellectual Property.
(b) There Seller owns, or has a valid right to use, free and clear of all Liens (other than Permitted Liens), all Business Intellectual Property. All Owned Intellectual Property is owned exclusively by Seller, free and clear of any Liens (other than Permitted Liens) or adverse interest of other Persons (including current or former employees, third party agents, or contractors). None of the Owned Intellectual Property and, to Seller’s Knowledge, no Software owned by or licensed to the Company except for mass market Software licensed to the Company that other Business Intellectual Property is commercially available and subject to “shrink-wrap” any Proceeding, or “click-through” license agreementsany Contract entered into in settlement of such Proceeding, restricting the use, transfer, licensing, or exploitation by Seller. Seller has not granted any exclusive licenses to or exclusive rights under any Business Intellectual Property.
(c) The Company conduct of the Business has not infringed, diluted, misappropriated, or otherwise violated the Intellectual Property rights of any Person, and no Person is not a party to Contracts which relate to: (i) infringing, misappropriating, or otherwise violating any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsBusiness Intellectual Property.
(d) There has been no Proceeding of infringement, dilution, misappropriation, or other violation, asserted or, to the Seller’s Knowledge, threatened (including in the form of offers or invitations to obtain a license) against Seller (or any Principal with respect to the Business or any Business Intellectual Property), and there are no facts, circumstances, or conditions that could reasonably be expected to form the basis for any such Proceeding.
(e) The Company owns Owned Intellectual Property, together with the entire Intellectual Property licensed to Seller pursuant to the Inbound Licenses and the Intellectual Property that is comprised of rights of publicity, privacy, rights of personal information, moral rights, or rights of attribution, and integrity, include all of the Intellectual Property used or necessary for the conduct of the Business as conducted as of the Closing and at any time during the 12 months immediately preceding the Closing. Seller has the right to use any Inbound License used in the operation of the Business as currently conducted and Buyer will have the same rights immediately after the Closing. Seller has not implemented in its Software any derivative works of Inbound Licenses in any manner that would be prohibited under the applicable Inbound License.
(f) Any current or former employee, independent contractor, or manager of Seller or the Business that has invented, created, developed, or reduced to practice any Owned Intellectual Property (each a “Contributor”) has executed a valid and enforceable written agreement substantially in the form provided to Buyer that (i) assigns to Seller all right, title title, and interest in and to any and all Intellectual Property relating to the Business that is invented, created, developed, or reduced to practice by such Contributor in the course of such Contributor’s activities for Seller or the Business or during working hours for Seller or using the resources of Seller and (ii) contains provisions consistent with industry standards designed to prevent unauthorized disclosure of Seller’s trade secrets. No party to any such written agreement has breached or violated the terms thereof or has attempted or threatened to challenge the enforceability, scope, or applicability of any such agreement. All Owned Intellectual Property that was invented, created, developed, or reduced to practice by any current or former employee, independent contractor, or manager of Seller or the Business prior to such Person’s employment by or contractual relationship with Seller has been assigned to Seller pursuant to a written agreement, copies of which agreements have been provided to Buyer.
(g) Seller has taken all reasonable measures consistent with industry standards to protect the confidentiality of trade secrets, including requiring all Persons having access thereto to execute written non-disclosure agreements.
(h) No current or former Affiliate, partner, manager, equity holder, officer, consultant, or employee of Seller will, after giving effect to the Transactions, own or retain any rights to use or otherwise exploit any of the Business Intellectual Property. The consummation of the Transactions will not (i) result in the loss or impairment of or payment of any additional amounts with respect to, require the consent or approval of any other Person in respect of, or give rise to any right of any Person to terminate or alter, Seller’s right to own, use, or hold for use any Business Intellectual Property as presently owned, used, or held for use in the conduct of the Business, (ii) violate or result in the breach, modification, cancellation, acceleration, termination, or suspension of any of the Inbound Licenses or Outbound Licenses, or (iii) result in the violation of any applicable Privacy Laws/Policies. Following the Closing, Buyer will be permitted to exercise all of the rights previously held by Seller under all Inbound Licenses and Outbound Licenses to the same extent that Seller would have been able to had the Transactions not occurred and without being required to pay any additional amounts or consideration other than fees, royalties, or payments that Seller would otherwise be required to pay had the Transactions not occurred. Neither this Agreement nor the Transactions will result in (1) any Person being granted rights or access to, or has the valid and enforceable placement in or release from escrow of, any source code or other technology, (2) Buyer being obligated to grant to any third party any right in any Intellectual Property, (3) Buyer being bound by, or subject to, any non-compete or other restriction on the operation or scope of its businesses, or (4) Buyer being obligated to use, the Intellectual Property and Software used pay any royalties or other amounts to any third party in the Business as currently conducted, and excess of those payable by Seller prior to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conductedClosing Date.
(i) Seller has taken commercially reasonable steps and implemented commercially reasonable procedures to protect its information technology systems from (i) the inclusion of any device or feature designed to disrupt, disable, permit unauthorized access, or otherwise harm, damage, or impair Software, hardware, or data and (ii) unauthorized access, use, modification, or other misuse. There have been no material security breaches in the information technology systems of Seller, and there have been no disruptions in any of the information technology systems of Seller that have materially and adversely affected the Business or operations of Seller. Seller maintains commercially reasonable disaster recovery and security plans, procedures, and facilities.
(j) Seller has provided copies of all current and former privacy policies to the Buyer. Seller has not purchased, licensed, transferred, sold, rented, or otherwise made available any Personal Information (including name, address, telephone number, or email address) of any natural Person to any Person except in accordance in all material respects with all applicable Privacy Laws/Policies, including in relation to conducting background checks on any Person. Seller has at all times complied in all material respects with all applicable Privacy Laws/Policies. No infringementProceedings have been asserted or, misappropriation to Seller’s Knowledge, threatened against Seller (or any Principal as it relates to the Business) alleging a violation of any Person’s privacy, data rights, or other rights with respect to such Person’s Personal Information or any applicable Privacy Laws/Policies. Seller has implemented and maintained a system of controls sufficient to provide reasonable confidence that Seller complies in all material respects with all applicable Privacy Laws/Policies.
(k) There are no Contracts between Seller and any other Person pursuant to which Seller has assumed or agreed to assume any obligation or duty or to warrant, indemnify, reimburse, hold harmless, guaranty, or otherwise assume or incur any obligation or Liability of such Person with respect to any Intellectual Property rights.
(l) Section 4.13(l) to the Seller Disclosure Letter lists all Open Source Software that has been incorporated into, integrated with, combined with, or linked to any Business Intellectual Property in any way, or from which any Business Intellectual Property was derived. Seller has not used Open Source Software in any manner that, with respect to any Business Intellectual Property (excluding the Open Source Software itself), does or is reasonably expected to (i) require its disclosure or distribution in source code form, (ii) require the licensing thereof for the purpose of making derivative works, (iii) impose any restriction on the consideration to be charged for the distribution thereof, or (iv) create, or purport to create, obligations for Seller with respect to Business Intellectual Property or grant, or purport to grant, to any third party, any rights or immunities under Business Intellectual Property. Seller is and has been in compliance with all applicable licenses with respect to any Open Source Software that is currently or has been used by Seller in any way.
(m) Neither Seller nor any other Person acting on its behalf has disclosed, delivered, or licensed to any Person, agreed to disclose, deliver, or license to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of any source code for any Business Intellectual Property, except for disclosures to employees, contractors, or consultants under written agreements that prohibit use or disclosure except in the performance of services to Seller.
(n) There are no defects, malfunctions, or nonconformities in any of the commercially available Owned Intellectual Property that have or would be reasonably likely to materially disrupt their commercial availability, except for such defects, malfunctions, or nonconformities that can be fixed in the Ordinary Course without incurring material costs or expenses.
(o) Seller has not incorporated, and, to Seller’s Knowledge, no other Person has incorporated, 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 deletion of any Business Intellectual Property, or data or other Software of users (“Contaminants”) into any rights Business Intellectual Property. Seller has taken commercially reasonable steps to prevent the introduction of publicity Contaminants into any Business Intellectual Property.
(p) Seller does not use AI Technology or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results AI Development Tools in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity , including in connection with the processing of any Intellectual Property owned Personal Information provided or made available to, or otherwise accessible by, Seller by, about, or on behalf of any customers of Seller or any other third parties.
(q) Seller has not deployed, implemented, or used third-party cookie, software development kit, pixel or other tracking technology (“Tracking Technology”) on any websites owned, operated, controlled, or otherwise used by the Company Seller in connection with its Business. Seller does not engage in any practice that constitutes “selling,” “sharing,” “targeted advertising,” or other similarly regulated activity under Privacy Laws/Policies. Seller’s use of Tracking Technologies has been made by and remains in compliance with Privacy Laws/Policies and Seller has obtained any other Person; (iv) no Proceedings are pending or, necessary consents and provided all required mechanisms to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any opt-out in connection with such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectuse.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (Priority Technology Holdings, Inc.)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Schedule 3.20(a) sets forth a complete and correct list of all registered or Proprietary Rights and Trademarks (including any assumed owned or fictitious names used by the Company within in connection with the previous two businesses of the Company as now conducted and as currently proposed to be conducted (2other than software used by the Company pursuant to the terms of standard off-the-shelf licenses) years) (the “Company Intellectual Property”). Each registration of, or application to register, each Proprietary Right owned by or licensed the Company as listed in Schedule 3.20(a) is valid and subsisting, in full force and effect in all material respects, and, to the Companyextent registered, has not been canceled, expired or abandoned.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: Except as set forth in Schedule 3.20(b), (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available owns and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire possesses all right, title and interest in and to, or has the valid a written and enforceable right license to use, all of the material Company Intellectual Property Property, free and Software used in clear of all Encumbrances (other than Permitted Encumbrances); (ii) the Business as currently conductedCompany has not received any written notice of any claim by any third party contesting the validity, enforceability, use or ownership of any material Company Intellectual Property, nor, to the Company’s Knowledge, is any such claim threatened; (iii) the Company has not infringed, misappropriated or otherwise conflicted, and to the Knowledge Company’s Knowledge, no third party has infringed, misappropriated or otherwise conflicted, with any Proprietary Rights of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No any third party, nor will any infringement, misappropriation or violation conflict by the Company’s acts or omissions occur as a result of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the continued operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect businesses of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Personas currently conducted or as currently proposed to be conducted; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any all Company Intellectual Property set forth in Schedule 3.20(a) will be owned by or available for use by the CompanyCompany immediately subsequent to Closing on identical terms and conditions as currently owned or used; (v) the Company has not had notice made the necessary filings and recordations, and has paid all required fees, to record and maintain its ownership of all registered Proprietary Rights owned by the Company; (vi) no trade secret or confidential know-how either of which is material to the businesses of the Company has, to its Knowledge, been disclosed or authorized to be disclosed to any third party, other than pursuant to a non-disclosure agreement that protects the Company’s proprietary interests in and to such trade secrets and confidential know-how and (vii) the Company has at all times complied in all material respects with and is in compliance in all material respects with all applicable laws relating to privacy, data protection or the collection, retention, use and disclosure of personal information.
(c) Section 3.20(c) of the Company Disclosure Schedule sets forth a correct and complete list of (i) all software owned by the Company (“Company Proprietary Software”), and (ii) all software licensed by the Company other than pursuant to standard off the shelf licenses (“Company Licensed Software”). All software identified on Section 3.20(c) of the Company Disclosure Schedule, as well as all information technology equipment and systems used by the Company in connection therewith, operate and perform in all material respects in accordance with their documentation and functional specifications and otherwise as required in connection with the operation of the businesses of the Company and none of such software and information technology equipment and systems have materially malfunctioned or failed within the past twelve (12) months. The Company has implemented reasonable backup, security and disaster recovery technology consistent with industry practices. None of the 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: (i) could or does require, or could or does 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) could or does otherwise impose any limitation, restriction or condition on the right or ability of the Company to use or distribute any Company Proprietary Software. The source code for Company Proprietary Software currently in use by the Company or that is subject to any license arrangement and revealed to the Company is maintained in confidence.
(d) All Material Contracts granting the Company rights in the Company Intellectual Property are in full force and effect. The consummation of the transactions contemplated by this Agreement will neither violate nor result in the breach, modification, cancellation, termination, or suspension of, or release from escrow of any Company Intellectual Property under, any such Material Contract in accordance with the terms of such Contract. The Company is in material compliance with, and has not breached any material term of, any such Contract and, to the Knowledge of Sellerthe Company, there is no basis forall other parties to such Contracts are in compliance in all material respects with, a claim against and have not breached any material term of, any such Contract. After the Closing Date the Company or a Subsidiary of the Company will be permitted to exercise all of the Company’s rights or such Subsidiary’s rights under such Contracts to the same extent that the operationsCompany or such Subsidiary would have been able to do so had the transactions contemplated by this Agreement not occurred and without the payment of any additional amounts or consideration other than ongoing fees, activitiesroyalties, products, Software, equipment or processes payments that the Company or such Subsidiary would otherwise be required to pay.
(e) Without limiting the generality of the Business infringeforegoing, misappropriatethe Terminating Agreement grants to the Company a worldwide, violate or dilute perpetual, irrevocable and royalty free license and right to use, copy, modify, perform, distribute, market, sell, create derivative works of and otherwise exploit in any Intellectual Property or way and in any such rights medium the Proprietary Rights purported to be licensed thereunder (the “Inverter IP”) in the conduct the Company’s business as is currently conducted and currently proposed to be conducted, free and clear of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEncumbrances.
Appears in 1 contract
Intellectual Property; Software. Other than (a) Except as set forth on in Section 3.13(a) of the Disclosure Schedule 5.12:
or as otherwise would not have a Company Material Adverse Effect, the Company or one of the Subsidiaries is the owner of (afree and clear of all liens, encumbrances and other restrictions), or is a licensee under a valid written license for, all items of intangible property, including, without limitation, copyrights, trademarks and service marks (whether or not registered or applied for registration), domain names, trade names, logos, trade dress, brand names, patents, patent applications, inventions (whether or not patentable and whether or not reduced to practice), trade secrets and copyrights (whether or not registered or applied for registration) and all registrations, applications and renewals for, and goodwill associated with any of the foregoing; and all trade secrets, confidential information, ideas, formulae, compositions, know-how, technical and computer data, documentation and software, financial, business and marketing plans and materials, customer and supplier lists and related information and all other proprietary rights (collectively, the "Intellectual Property"), which are used in the operation of the business of the Company and the Subsidiaries as currently conducted. There are no Copyrightsclaims pending or, Patent Rights and Trademarks (including to the Company's or any assumed Subsidiary's knowledge, threatened, that the Company or fictitious names any of the Subsidiaries is in violation of any intangible property rights of any third party or contesting the validity, enforceability, use or ownership of any of the Intellectual Property owned or used by the Company within the previous two (2) years) owned by or licensed any Subsidiary, and to the Company's or any Subsidiary's knowledge, there are not grounds for the same. To the Company's or any Subsidiary's knowledge, no third party has interfered with, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights owned or used by the Company or any Subsidiary. The Company and each Subsidiary has taken what it believes, based on its reasonable business judgment, to be reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. All payments, including maintenance fees, for all Intellectual Property filings and registrations and pending and issued patents have been made through the date hereof with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. All Intellectual Property owned or used by the Company or any of the Subsidiaries immediately prior to the Effective Time will be owned or available for use by the Surviving Corporation and the Subsidiaries on substantially identical terms and conditions immediately subsequent to the Effective Time, except as would not have a Company Material Adverse Effect.
(b) There is no Software owned by or licensed to Section 3.13 of the Company except for mass market Software licensed to the Company that is commercially available Disclosure Schedule sets forth a complete and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate tocorrect list of all: (i) patented or registered Intellectual Property and pending patent applications or other applications for registrations of Intellectual Property owned or filed by or on behalf of the Company or any Copyrights, Patent Rights or Trademarksof its Subsidiaries; (ii) any Trade Secrets trade names and material unregistered trademarks and service marks owned or used by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Businessits Subsidiaries; (iii) no claim of invalidity of any Intellectual Property computer software owned or used by the Company has been made by or any of its Subsidiaries (other Personthan commercially available software with an annual license fee of less than $25,000); and (iv) no Proceedings are pending or, to licenses or similar agreements or arrangements for the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) to which the Company has not had notice ofor any Subsidiary is a party, andeither as licensee or licensor (other than those with an annual license fee of less than $25,000), to the Knowledge of Sellerexcept in each case, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes as otherwise indicated in Section 3.13 of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectDisclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Aon Corp)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 2.16(a) of the Company Disclosure Schedule sets forth an accurate and complete list of all (i) patents and patent applications, Patent Rights (ii) trademark or service ▇▇▇▇ applications and Trademarks registrations, (including any assumed iii) domain name registrations, and (iv) copyright registrations and applications, in each case, owned or fictitious names used filed by the Company within the previous two (2) years) owned by or licensed any of its Subsidiaries, in each case that are material to the Company.
business of the Company and used in connection with the business of the Company and its Subsidiaries as currently conducted (b) There collectively, “Company Registered IP”). No Company Registered IP is no Software owned by involved in any interference, reissue, reexamination, opposition, cancellation or licensed similar proceeding and, to the Company except for mass market Software licensed knowledge of the Company, no such action is or has been threatened with respect to any of the Company that is commercially available Registered IP. Except as do not and subject would not reasonably be expected to “shrink-wrap” have a Company Material Adverse Effect, either the Company or “click-through” license agreements.
a Subsidiary of the Company owns, free and clear of all Liens (c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and toPermitted Liens), or has the a valid and enforceable continuing license or a valid right to use, the all Intellectual Property and Software used in connection with the Business as currently conducted, and to the Knowledge business of Seller there is no other Intellectual Property necessary for the Company to conduct the Business and its Subsidiaries as currently conducted.
(b) Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, (i) No infringementthe conduct of the business as currently conducted by the Company and its Subsidiaries does not infringe, misappropriation misappropriate, dilute or violation of otherwise violate any Person’s Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect as of the operation date of the Business; (iii) this Agreement, there is no such claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of SellerCompany’s Knowledge, threatened that challenge against the validityCompany or its Subsidiaries, ownership (iii) to the Company’s Knowledge, except as set forth in Section 2.16(b) of the Company Disclosure Schedule, no Person has or use of is infringing, misappropriating or otherwise violating any Intellectual Property owned by the Company; , and (viv) no such claims are pending or threatened in writing against any Person by the Company has or its Subsidiaries.
(c) Except as do not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have taken reasonable steps designed to protect and preserve the confidentiality of all material trade secrets and other material confidential information owned by the Company and/or its Subsidiaries.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 3.16(a) of the NV5 Disclosure Schedule sets forth a true, Patent Rights correct and Trademarks (including any assumed or fictitious names used by complete list of all material unregistered Marks included in the Company within the previous two (2) years) owned by or licensed to the CompanyNV5 Intellectual Property.
(b) There Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in a NV5 Material Adverse Effect, (i) a NV5 Entity is no Software owned the sole and exclusive owner of all NV5 Registered Intellectual Property and all other NV5 Intellectual Property (including the Intellectual Property created by or licensed to employees within the Company scope of their employment by the NV5 Entities), free and clear of any Lien thereon (except for mass market Software licensed to any Permitted Lien), (ii) all NV5 Registered Intellectual Property is subsisting and (iii) all issuances and registrations included in the Company that is commercially available NV5 Registered Intellectual Property are valid and subject to “shrink-wrap” enforceable. No prior or “click-through” license agreementscurrent employee or officer or any prior or current consultant or contractor of the NV5 Entities has asserted any ownership in any NV5 Intellectual Property.
(c) The Company Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, in a NV5 Material Adverse Effect, a NV5 Entity owns, licenses or otherwise has, and since December 31, 2021, has owned, licensed, or otherwise had, the valid right to use all Intellectual Property used in, or held for use for, the operation of the NV5 Entities’ respective businesses. Any material Intellectual Property licensed by a NV5 Entity is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or validly licensed to the Company; NV5 Entity pursuant to written, valid agreements. Neither the execution and (iii) delivery of this Agreement nor the consummation of the Mergers or other transactions contemplated by this Agreement will result in the termination or invalidity of any Software, other than market Software agreements pursuant to which the material Intellectual Property is licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsNV5 Entity.
(d) The Company owns the entire rightExcept as has not resulted, title and interest in and towould not reasonably be expected to result, individually or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conductedaggregate, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.in a NV5 Material Adverse Effect:
(i) No infringement(A) the operation of the NV5 Entities’ respective businesses, misappropriation as currently conducted and as conducted since December 31, 2021, is not infringing, misappropriating or violation of otherwise violating, and has not infringed, misappropriated or otherwise violated, (1) any Intellectual Property, Patents or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, Marks of any other Person has occurred or results in (2) any way from the operation of the Business or the use, sale or distribution of any other Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (viB) to the Knowledge since December 31, 2021, there has been no Action instituted or threatened in writing against any NV5 Entity alleging infringement, misappropriation or other violation of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned of another Person or exclusively licensed challenging the ownership, validity or enforceability of any NV5 Intellectual Property;
(ii) (A) no Person is infringing, misappropriating or otherwise violating, or since December 31, 2021, has infringed, misappropriated, or otherwise violated, any NV5 Intellectual Property and (B) since December 31, 2021, no NV5 Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or other violation of any such NV5 Intellectual Property;
(iii) each NV5 Entity takes and has taken commercially reasonable actions to protect the confidentiality of Trade Secrets included in the NV5 Intellectual Property;
(iv) all current and former officers and employees of, and consultants and independent contractors to, the NV5 Entities whose duties to the NV5 Entities reasonably contemplate or contemplated access to Trade Secrets included in the NV5 Intellectual Property have executed a valid and enforceable written agreement with the applicable NV5 Entity agreeing to protect the confidentiality of Trade Secrets included in the NV5 Intellectual Property;
(v) all current and former officers and employees of, and consultants and independent contractors to, the NV5 Entities whose duties to the NV5 Entities reasonably contemplate or contemplated the development of Intellectual Property (other than copyright rights in works of authorship authored by employees within the scope of their employment) have executed a valid and enforceable written agreement with the applicable NV5 Entity that assigns to such NV5 Entity all of such Person’s rights, title and interest in and to any and all NV5 Intellectual Property such Person contributed to the creation or development of, and, to the extent applicable, irrevocably waives such Person’s moral rights in, such Intellectual Property;
(vi) no NV5 Intellectual Property is subject to any Contract containing any covenant or other provision that limits or restricts in any manner, taken as a whole, the ability of the NV5 Entities: (A) to make, use, import, sell, offer for sale or promote any products or services made available by or on behalf of the NV5 Entities, and any products or services currently being developed (or already developed) by or for the NV5 Entities, anywhere in the world; or (B) to Selleruse, exploit, assert or enforce any of the NV5 Intellectual Property anywhere in the world;
(vii) (A) each case NV5 Entity takes and has taken commercially reasonable actions to maintain the operation of NV5 Software and NV5 IT Assets, including by implementing written information security policies that comply with applicable Laws, reasonable disaster recovery incident response plans with respect to such NV5 IT Assets, and (B) since December 31, 2021, there has been no failure in, or disruptions of, any NV5 Software or any NV5 IT Assets that has not been fully remedied; and
(viii) (A) the NV5 IT Assets are sufficient for the conduct of the businesses of the NV5 Entities, taken as a whole, as currently conducted, (B) no Software that is distributed as “open source software” or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL) or GNU Affero General Public License (AGPL) (collectively, “Open Source Software”) is a component of, has been incorporated into, linked to or distributed with any NV5 Software by or on behalf of any NV5 Entity in a manner that would (1) either currently or upon its distribution, require any NV5 Software (in whole or in part) to be licensed, sold or disclosed in source code form, (2) grant the right to make modifications or derivative works of any NV5 Software (in whole or in part), or (3) impose a requirement or condition that any NV5 Software be redistributable at no charge, (C) the NV5 Software does not contain any device or feature that disrupts, disables, or otherwise impairs the functioning of any such NV5 Software (except as could notpart of the intended functionality of such NV5 Software) or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” or other code or routines that permit unauthorized access, use, disablement or erasure of such NV5 Software, NV5 IT Assets or information or other data (or all parts thereof) or other Software or information technology assets of duly authorized users of such NV5 Software, and (D) the NV5 IT Assets have been reasonably maintained and tested for vulnerabilities with necessary patches and updates applied where appropriate.
(e) Except as has not resulted, and would not reasonably be expected to result, individually or in the aggregate, reasonably be expected to have in a NV5 Material Adverse Effect, no source code for any NV5 Software (i) has been provided, licensed or made available to any customer, business partner, escrow agent or other Person except to employees and third-party Software developers of a NV5 Entity solely for use, modification, creation of derivative works and/or disclosure in connection with their employment or engagement with such NV5 Entity, or (ii) is subject to any duty or obligation (whether present, contingent, or otherwise) of any NV5 Entity to deliver, license, or make available any such source code to any customer, business partner, escrow agent or other Person.
Appears in 1 contract
Sources: Merger Agreement (NV5 Global, Inc.)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsTo the Company's knowledge, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within or one of its Subsidiaries is the previous two owner of (2free and clear of all liens and encumbrances), has sufficient and valid rights to use or is a licensee under a valid written license that has been disclosed to Buyer and Merger Sub for, all items of intangible property, including, without limitation, trademarks and service marks (whether or not registered or applied for registration), domain name, trade names, brand names, patents, patent applications, inventions (whether or not patented), trade secrets and copyrights (whether or not registered or applied for registration) years) owned by (collectively, the "INTELLECTUAL PROPERTY"), which individually or licensed to in the Company.
(b) There is no Software owned by or licensed to aggregate are necessary for the operation of the business of the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business of its Subsidiaries as currently conducted, and to the Knowledge of Seller there is no other except for any such Intellectual Property necessary for the Company loss of which would not reasonably be expected to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to cause a Material Adverse Effect on the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has . Except as would not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect on the Company, there are no claims pending or, to the Company's or any of its Subsidiaries's knowledge, threatened, that the Company or any of its Subsidiaries in violation of any intangible property rights of any third party. Except as would not reasonably be expected to have a Material Adverse Effect on the Company, no third party has interfered with, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights of the Company or any of its Subsidiaries. The Company and each of its Subsidiaries has taken reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. Except as would not reasonably be expected to have a Material Adverse Effect on the Company, all payments, including maintenance fees, and all filings and registrations have been made with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. Except as would not reasonably be expected to have a Material Adverse Effect on the Company, all Intellectual Property owned or used by the Company or any of its Subsidiaries immediately prior to the Effective Time will be owned as available for use by the Surviving Corporation and its Subsidiaries on identical terms and conditions immediately subsequent to the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Aon Corp)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There Schedule 4.15(a) sets forth a true and correct list of all copyrights, trade names, trademarks, trade secrets, service marks or patents (or applications therefor) which are no Copyrightsused in the Business or relate to the Assets or Assumed Liabilities (the "Intellectual Property") and the jurisdictions where each is registered (if any), Patent Rights with the exception of those trade marks, service marks and Trademarks trade names indicated on Schedule 6.12. The Company has good and marketable title to or possesses adequate licenses or other valid rights to use such Intellectual Property, free and clear of all Liens and has paid all maintenance fees, renewals or expenses related to such Intellectual Property. Neither the use of such Intellectual Property nor the conduct of the Business in accordance with the Company's past practices, misappropriates, infringes upon or conflicts with any patent, copyright, trade name, trade secret, trademark or other intellectual property rights of any third party. No party has filed a claim (including or, to the Knowledge of the Company, threatened to file a claim) against the Company alleging that it has violated, infringed on or otherwise improperly used the intellectual property rights of such party and, to the Knowledge of the Company, the Company has not violated or infringed any assumed patent, trademark, trade name, service mark, service name, copyright or fictitious names used trade secret held by others.
(▇) Schedule 4.15(b) sets forth a true and complete list of: (i) all software owned by the Company within used in connection with the previous two Business (2the "Company Proprietary Software"); (ii) yearsall other software (other than Company Proprietary Software), used in connection with the Business (the "Company Licensed Software" and, together with the Company Proprietary Software, the "Company Software"); and (iii) owned by or licensed all technical and restricted materials relating to the Company.
(b) There is no Software owned by acquisition, design, development, use or licensed to maintenance of computer code program documentation and materials used in connection with the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsBusiness.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire has all right, title and interest in and toto all intellectual property rights in the Company Proprietary Software. The Company has developed the Company Proprietary Software through its own efforts, as described in Section 4.15(e), and for its own account, and the Company Proprietary Software is free and clear of all Liens. The use of the Company Software does not breach any terms of any license or has other contract between the valid Company and enforceable right to useany third party. To the Company's Knowledge, the Intellectual Property Company is in compliance with the terms and Software used conditions of all license agreements in favor of the Business as currently conducted, and Company relating to the Knowledge Company Licensed Software.
(d) To the Company's Knowledge, the Company Proprietary Software does not infringe any patent, copyright or trade secret or any other intellectual property right of Seller there is no other Intellectual Property necessary any third party. The source code for the Company to conduct the Business as currently conductedProprietary Software has been maintained in confidence.
(e) The Company Proprietary Software was: (i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned developed by or licensed exclusively to the Company's employees working within the scope of their employment at the time of such development; (ii) no claim developed by agents, consultants, contractors or others who have executed appropriate instruments of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted assignment in respect favor of the operation Company as assignee that have conveyed to the Company ownership of all of its intellectual property rights in the BusinessCompany Proprietary Software; or (iii) no claim of invalidity of any Intellectual Property owned acquired by the Company has been made by any other Person; (iv) no Proceedings are pending orin connection with acquisitions in which the Company obtained appropriate representations, warranties and indemnities from the transferring party relating to the Knowledge of Seller, threatened that challenge title to the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company Proprietary Software. The Company has not had received notice offrom any third party claiming any right, and, to the Knowledge of Seller, there is no basis for, a claim against title or interest in the Company that the operations, activities, products, Proprietary Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such .
(f) The Company has not granted rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected Company Software to have a Material Adverse Effectany third party.
Appears in 1 contract
Sources: Asset Purchase Agreement (North American Galvanizing & Coatings Inc)
Intellectual Property; Software. Other than (a) Schedule 3.20(a) sets forth a true and complete list of all copyrights, trade names, trademarks, trade secrets, service marks or patents (or applications therefor) which are used by any of the Companies or as to which any such entity claims or could claim an ownership interest or as to which any such entity is a licensee or licensor (the "Intellectual Property") and the jurisdictions where each is registered (if any). Each of the Companies has good and marketable title to or possesses adequate licenses or other valid rights to use such Intellectual Property, free and clear of all Liens and has paid all maintenance fees, renewals or expenses related to such Intellectual Property. Except as set forth on Schedule 5.12:
3.20, neither the use of such Intellectual Property nor the conduct of any of the Companies in accordance with each such entity's past practice misappropriates, infringes upon or conflicts with any patent, copyright, trade name, trade secret, trademark or other intellectual property rights of any third party. Except as set forth on Schedule 3.20, no party has filed a claim (a) There are no Copyrightsor, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the CompanyKnowledge of the Shareholders, threatened to file a claim) against any of the Companies alleging that it has violated, infringed on or otherwise improperly used the intellectual property rights of such party and none of the Companies has violated or infringed any patent, trademark, trade name, service mark, service name, copyright or trade secret held by others. ▇▇▇e of the Companies has received notice from any third party claiming any right, title or interest in the Intellectual Property.
(b) There is no Software Schedule 3.20(b) sets forth a true and complete list of: (i) all material software owned by or licensed each of the Companies (the "Company Proprietary Software"); (ii) all material software (other than Company Proprietary Software) used by each of the Companies (the "Company Licensed Software" and, together with the Company Proprietary Software, the "Company Software"); and (iii) all technical and restricted materials relating to the Company except for mass market Software licensed to acquisition, design, development, use or maintenance of computer code program documentation and materials used by each of the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsCompanies.
(c) Each of the Companies has exclusive right, title and interest in and to its respective Company Proprietary Software. Each of the Companies has developed its respective Company Proprietary Software through such entity's own efforts, as described in Section 3.20(e), and for its own account, and the Company Proprietary Software is free and clear of all Liens. The use of the Company Software does not breach any terms of any license or other contract between any of the Companies and any third party. Each of the Companies is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to in compliance with the Company; terms and (iii) any Software, other than market Software licensed conditions of all license agreements relating to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsLicensed Software.
(d) The Company owns the entire rightProprietary Software does not infringe any patent, title and interest in and to, copyright or has the valid and enforceable trade secret or any other intellectual property right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary any third party. The source code for the Company to conduct the Business as currently conductedProprietary Software has been maintained in confidence.
(ie) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to The Company Proprietary Software and the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by each of the Companies were: (i) developed by the Shareholders or licensed exclusively to by the Companyemployees of the Company working within the scope of their employment at the time of such development; (ii) no claim developed by agents, consultants, contractors or others who have executed appropriate instruments of assignment in favor of the Company as assignee that have conveyed to the Company ownership of all of its intellectual property rights in the Company Proprietary Software and owned Intellectual Property; or (iii) acquired by the Company in connection with acquisitions in which the Company obtained appropriate representations, warranties and indemnities from the transferring party relating to the title to such Company Proprietary Software or owned Intellectual Property. None of the Companies has received notice from any infringementthird party claiming any right, misappropriationtitle or interest in the Company Proprietary Software or owned Intellectual Property. Prior to the Closing, violation or dilution of the Shareholders will transfer to the Company any Intellectual Property or any such rights of any other Person has been made or asserted that is used in respect the conduct of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property Company's operations and is owned by the Company Shareholders.
(f) None of the Companies has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) granted rights in the Company has not had notice of, and, Software to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectthird party.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Copyrights, Patent Rights and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, Except in each case except as could where the failure would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and except as disclosed in SECTION 3.1(s) of the Company Disclosure Schedule, (i) the Company owns all right, title and interest in or has valid and enforceable rights to use, by license or other agreements, all of the Intellectual Property that is currently used in the conduct of the Company's business, free of all liens, pledges, charges, options, rights of first refusal, security interests or other encumbrances of any kind, (ii) no action, claim, arbitration, proceeding, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, investigative or informal) has commenced, been brought or heard by or before any Governmental Entity or arbitrator or is pending or is threatened in writing by any third Person with respect to any Intellectual Property owned by the Company in connection with the business as currently conducted, including any claim or suit that alleges that any such Intellectual Property infringes, impairs, dilutes or otherwise violates the rights of others, and the Company is not subject to any outstanding injunction, judgment, order, decree, ruling, charge, settlement, or other dispute involving any third Person's Intellectual Property, (iii) the Company has not threatened or initiated any claim or action against any third party with respect to any Intellectual Property, and (iv) the Company has no Knowledge of any material conflict with or infringements of any Intellectual Property of any third Person.
(ii) For purposes of this Agreement, "Intellectual Property" means all (i) inventions, discoveries, processes, designs, techniques, developments, technology, and related improvements, whether or not patentable; (ii) United States patents and applications therefor and all divisionals, reissues, renewals, registrations, confirmations, re-examinations, certificates of inventorship, extensions, continuations and continuations-in-part thereof; (iii) United States, state and foreign trademarks, trade dress, service marks, service names, trade names, brand names, logo or business symbols, whether registered or unregistered, and pending applications to register the foregoing, including all extensions and renewals thereof and all goodwill associated therewith; (iv) United States and foreign copyrights in writings, designs, software, mask works or other works, whether registered or unregistered, and pending applications to register the same, (v) technical, scientific, and other know-how, trade secrets, methods, processes, practices, formulas and techniques, computer software programs and software systems, including all databases, compilations, tool sets, compilers, higher level or "proprietary" languages, related documentation and materials, whether in interpretive code, source code, object code or human readable form; (vi) rights of publicity and privacy, "name and likeness" rights and other similar rights, (vii) books and records kept in the ordinary course of business describing or used in connection with any of the foregoing; and (viii) claims or causes of action arising out of or related to past, present or future infringement or misappropriation of any of the foregoing. Without limiting the foregoing, the Intellectual Property shall include the trademark registrations, trademark applications, and right to register the domain names as set forth in SECTION 3.1(s) of the Company Disclosure Schedules.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsSection 2.17(a) of the Company Disclosure Schedule sets forth an accurate and complete list of all (A) patents and patent applications, Patent Rights (B) trademark or service ▇▇▇▇ applications and Trademarks registrations, (including any assumed C) domain name registrations, and (D) copyright registrations and applications, in each case, owned or fictitious names used filed by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Software owned by any of its Subsidiaries. The Company or licensed to a Subsidiary of the Company except for mass market Software licensed to the Company that is commercially available owns, free and subject to “shrink-wrap” or “click-through” license agreements.
clear of all Liens (c) The Company is not a party to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(d) The Company owns the entire right, title and interest in and toPermitted Liens), or has the a valid and enforceable continuing license or a valid right to use, the all Intellectual Property and Software used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct connection with the Business as currently conducted.
(b) Except as is not and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, or the Business, (i) No infringementthe conduct of the Business as currently conducted by the Company and its Subsidiaries does not infringe, misappropriation misappropriate, dilute or violation of otherwise violate any Person’s Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation (ii) as of the Business or the usedate of this Agreement, sale or distribution of any Intellectual Property owned by or licensed exclusively there is no such claim pending or, to the Company; (ii) no claim of any infringement’s Knowledge, misappropriationthreatened against the Company or its Subsidiaries, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) to the Company’s Knowledge as of the date of this Agreement, except as set forth in Section 2.17(b) of the Company Disclosure Schedule, no claim of invalidity of Person has or is infringing, misappropriating or otherwise violating any Intellectual Property owned by the Company has been made by or any other Person; of its Subsidiaries, and (iv) no Proceedings such claims are pending oror threatened in writing against any Person by the Company or its Subsidiaries.
(c) The Company and its Subsidiaries have taken reasonably necessary steps to protect and preserve the confidentiality of all material trade secrets and other material confidential information owned or held by the Company and/or its Subsidiaries.
(d) The Company maintains control of copies of the Software included in the Intellectual Property which the Company or its Subsidiaries license from third Persons or otherwise use and documentation (including user guides) reasonably necessary to use such Software, to and the Knowledge of Seller, threatened that challenge Company maintains control over the validity, ownership or use of any Intellectual Property source code and/or such other documentation (including user guides and specifications) for all material proprietary Software developed or created by or on behalf of the Company and/or owned by the Company; Company or any of its Subsidiaries (v“Company Proprietary Software”) and/or such documentation (including user guides and specifications) reasonably necessary to use, maintain and modify the Company has not had notice of, Proprietary Software. The Company Proprietary Software and, to the Knowledge of SellerCompany’s Knowledge, there is no basis for, a claim against the material Software included in the Intellectual Property which the Company that or its Subsidiaries license from third Persons or otherwise use functions substantially in compliance with applicable written, published documentation and specifications. As used in this Agreement, “Software” means all computer programs, including any and all software implementations of algorithms, models and methodologies whether in source code, object code or other form, software databases and compilations, including any and all data and collections of data, descriptions, flow-charts and other work product used to design, plan, organize and develop any of the operationsforegoing. The Company and its Subsidiaries own, activities, products, lease or license all material Software, hardware, databases, computer equipment or processes and other information technology necessary for the operations of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectcurrently conducted.
Appears in 1 contract
Intellectual Property; Software. Other than as set (A) Schedule 4.12(a) hereto sets forth on Schedule 5.12:
(a) There are no Copyrightscontains a true, Patent Rights correct and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) complete list of all Intellectual Property owned by or Seller (the “Owned Proprietary Rights”). Schedule 4.12(a) hereto also lists each material license for Intellectual Property licensed to by Seller (the Company“Licensed Proprietary Rights”).
(bi) There The operation of the business of Seller, including the use of the Owned Proprietary Rights, does not infringe or misappropriate or otherwise materially violate the Intellectual Property rights of any third party, and no claim is no Software owned by or licensed pending or, to the Company except for mass market Software licensed to knowledge of Seller, threatened against Seller alleging any of the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: (i) any Copyrightsforegoing, Patent Rights or Trademarks; (ii) any Trade Secrets owned by Seller owns, or licensed with respect to the Company; Licensed Proprietary Rights, licenses all of the Intellectual Property necessary for the conduct of the business of Seller, and (iii) except for the Owned Proprietary Rights and the Licensed Proprietary Rights, no material right, license, lease, consent, or other agreement is required with respect to any Software, other than market Software licensed to Intellectual Property for the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsconduct of the business of Seller.
(dC) The Company owns Subject only to the terms of the licenses listed on Schedule 4.12(c) or licenses that are immaterial to the Ordinary Course of Business of the Seller, or except as disclosed in Schedule 4.12(c), Seller is (i) the sole owner of the entire and unencumbered right, title and interest in and toto each item of the Owned Proprietary Rights, or has and (ii) entitled to use the valid Owned Proprietary Rights and enforceable right Licensed Proprietary Rights in the ordinary course of its business to use, the Intellectual Property and Software extent such Proprietary Rights are used in the Business as currently conductedoperation of the business of the Seller.
(D) The Owned Proprietary Rights and Licensed Proprietary Rights include all of the material Intellectual Property used in the Business, and there are no other items of Intellectual Property that are material to the Business.
(E) Seller has made available to Buyer all material correspondence and all written opinions in its possession relating to potential infringement or misappropriation (i) by Seller of any Proprietary Rights of any third party or (ii) by any third party of any of the Owned Proprietary Rights or Licensed Proprietary Rights.
(F) To the Knowledge of Seller, (i) no third party is engaging in any activity that infringes or misappropriates the Owned Proprietary Rights or Licensed Proprietary Rights and (ii) Seller there is no has not granted any material license or other Intellectual Property necessary for right to any third party with respect to the Company to conduct the Business as currently conductedOwned Proprietary Rights or Licensed Proprietary Rights.
(iG) No infringementSeller has a license to use all software development tools, misappropriation or violation of any Intellectual Propertylibrary functions, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any compilers and other Person has occurred or results third-party software that are used in any way from the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively and are material to the Company; (ii) no claim of any infringementBusiness, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the Knowledge of Seller, there is no basis for, taken as a claim against the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.whole..
Appears in 1 contract
Sources: Asset Purchase Agreement (Tix CORP)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no CopyrightsExcept as do not and would not reasonably be expected to have a Company Material Adverse Effect, Patent Rights (i) Section 3.17(a) of the Company Disclosure Schedule sets forth an accurate and Trademarks complete list of all (including any assumed A) patents and patent applications, (B) trademark or fictitious names used service ▇▇▇▇ applications and registrations, (C) domain name registrations, and (D) copyright registrations and applications, in each case, owned or filed by the Company within or any of its Subsidiaries, and (ii) either the previous two Company or a Subsidiary of the Company owns, free and clear of all Liens (2) years) owned by other than Permitted Liens), or licensed has a valid and continuing license to use, all Intellectual Property and Software used in connection with the Companybusiness of the Company and its Subsidiaries as currently conducted.
(b) There is Except as do not and would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Company’s Knowledge as of the date of the Prior Agreement, the conduct of the business as then conducted by the Company and its Subsidiaries did not infringe, misappropriate, dilute or otherwise violate any Person’s Intellectual Property, (ii) as of the date of the Prior Agreement, there was no Software such claim pending or, to the Company’s Knowledge, threatened against the Company or its Subsidiaries, (iii) to the Company’s Knowledge as of the date of the Prior Agreement, except as set forth in Section 3.17(b) of the Company Disclosure Schedule, no Person had infringed, misappropriated or otherwise violated, or was infringing, misappropriating or otherwise violating, any Intellectual Property owned by the Company, and (iv) no such claims are pending or licensed to threatened in writing against any Person by the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsits Subsidiaries.
(c) The Company is not a party and its Subsidiaries have taken reasonably necessary steps to Contracts which relate to: (i) any Copyrights, Patent Rights or Trademarks; (ii) any Trade Secrets protect and preserve the confidentiality of all material trade secrets and other material confidential information owned by or licensed to the Company; and (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsand/or its Subsidiaries.
(d) The Company owns maintains control of copies of the entire right, title and interest Software included in and to, or has the valid and enforceable right to use, the Intellectual Property which the Company or its Subsidiaries license from third Persons or otherwise use and Software used in the Business as currently conducteddocumentation (including user guides) reasonably necessary to use such Software, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to maintains control over the use of names, likenesses, voices, signatures source code and/or such other documentation (including user guides and specifications) for all material proprietary Software developed or biographical information, of any other Person has occurred or results in any way from created by the operation of the Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the Company; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; (iii) no claim of invalidity of any Intellectual Property Company and owned by the Company has been made by or any other Person; of its Subsidiaries (iv“Company Proprietary Software”) no Proceedings are pending orand/or such documentation (including user guides and specifications) reasonably necessary to use, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) maintain and modify the Company has not had notice ofProprietary Software. The Company Proprietary Software, and, to the Knowledge of SellerCompany’s Knowledge, there is no basis for, a claim against the material Software included in the Intellectual Property which the Company that the operations, activities, products, Software, equipment or processes of the Business infringe, misappropriate, violate its Subsidiaries license from third Persons or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Seller, otherwise use functions substantially in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.compliance with applicable
Appears in 1 contract
Sources: Agreement and Plan of Merger (Fidelity National Financial, Inc.)
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Section 4.24(a) of the Company Disclosure Letter contains a list and description (including application number, registration number or equivalent identifying information, where applicable) of all Copyrights, Patent Rights and Trademarks (including any all assumed or fictitious names under which the Company or any of its Subsidiaries is conducting the Retained Business or has within the previous five years conducted the Retained Business) owned by, licensed to or used by the Company within or any of its Subsidiaries in connection with the previous two conduct of the Retained Business (2provided that Section 4.24(a) years) owned by of the Company Disclosure Letter does not list any mass market or commercially available copyrights, patent rights and trademarks licensed to the CompanyCompany or any of its Subsidiaries pursuant to “shrink-wrap” or “click-through” license agreements) separately listing those owned by, licensed to or used by the Spin-Off Subsidiary or any of its Subsidiaries.
(b) There is no Section 4.24(b) of the Company Disclosure Letter contains a list and description (showing in each case any owner, licensor or licensee) of all Software owned by or by, licensed to or used by the Company except for or any of its Subsidiaries in the conduct of the Retained Business, provided that Section 4.24(b) of the Company Disclosure Letter does not list mass market Software licensed to the Company or any of its Subsidiaries that is available in consumer retail stores or otherwise commercially available and subject to “shrink-wrap” or “click-through” license agreements, separately listing such Software owned by, licensed to or used by the Spin-Off Subsidiary or any of its Subsidiaries. The Software required to be listed in Section 4.24(b) of the Company Disclosure Letter, to the Knowledge of the Company, does not and will not (i) contain any Viruses or Worms or (ii) any computer code that would disable such Software or impair in any way its operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral, or other similar self-destruct mechanisms (sometimes referred to as “time bomb”, “time locks”, or “drop dead” devices) or that would permit any Person to access such Software to cause such disablement or impairment (sometimes referred to as a “trap door” device).
(c) The Section 4.24(c) of the Company is not a party to Contracts which relate Disclosure Letter identifies all outstanding licenses and other agreements relating to: (i) any Copyrights, Patent Rights or TrademarksTrademarks required to be listed in Section 4.24(a) of the Company Disclosure Letter; (ii) any Trade Secrets owned by or by, licensed to or used by the CompanyCompany or any of its Subsidiaries in connection with the conduct of the Retained Business; and or (iii) any SoftwareSoftware required to be listed in Section 4.24(b) of the Company Disclosure Letter, other than market Software licensed in each case separately listing such documents relating to the Company that is commercially available and subject to “shrinkSpin-wrap” Off Subsidiary or “click-through” license agreementsany of its Subsidiaries.
(d) The Except as set forth in Section 4.24(d) of the Company owns Disclosure Letter, the entire Company and its Subsidiaries either: (i) own all right, title and interest in and toto Intellectual Property and, to the Knowledge of the Company, Software currently used in the Retained Business or which may be usable by the Retained Business in the future as contemplated by the parties hereto; or (ii) have a perpetual, irrevocable, royalty free, valid and transferable right to use the same. Except as set forth in Section 4.24(d) of the Company Disclosure Letter, the Company or one of its Subsidiaries, as applicable, is listed in the records of the appropriate United States, state or non-U.S. registry as the sole current owner of record for each application or registration identified in Section 4.24(a) and Section 4.24(b) of the Company Disclosure Letter as being owned by the Company or one of its Subsidiaries.
(e) Except as disclosed in Section 4.24(e) of the Company Disclosure Letter: (i) all registrations for Copyrights, Patent Rights and Trademarks required to be identified in Section 4.24(a) of the Company Disclosure Letter as being owned by the Company or any of its Subsidiaries are valid and in force, and all applications to register any unregistered Copyrights, Patent Rights and Trademarks so identified are pending and in good standing, all without challenge of any kind; (ii) the Intellectual Property owned by the Company and its Subsidiaries has not been cancelled or abandoned and is valid and enforceable; and (iii) the Company or one of its Subsidiaries has the valid sole and enforceable exclusive right to usebring actions for infringement, misappropriation, dilution, violation or unauthorized use of the Intellectual Property and Software used in owned by the Business as currently conductedCompany and its Subsidiaries, and to the Knowledge of Seller Company’s Knowledge, there is no other Intellectual Property necessary basis for the Company to conduct the Business as currently conductedany such action.
(f) Except as set forth on Section 4.24(f) of the Company Disclosure Letter: (i) No to the Knowledge of the Company, no infringement, misappropriation misappropriation, violation or violation dilution of any Intellectual Property, Property of the Company or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person its Subsidiaries has occurred or results in any way from by conducting the operation of the Retained Business or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to the CompanySpin-Off Business as presently conducted; (ii) no claim of any infringement, misappropriation, violation or dilution of any Intellectual Property of the Company or any such rights of any other Person its Subsidiaries has been made or asserted in respect of the operation operations of the Retained Business or the Spin-Off Business; and (iii) no claim of invalidity of any Intellectual Property owned by neither the Company nor any of its Subsidiaries has been made by any other Person; (iv) no Proceedings are pending or, to the Knowledge of Seller, threatened that challenge the validity, ownership or use of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, to the or has Knowledge of Seller, there is no any basis for, a claim against the Company or any of its Subsidiaries that the operations, activities, products, Software, equipment equipment, machinery or processes of the Retained Business or the Spin-Off Business infringe, misappropriate, violate or dilute any Intellectual Property in the United States or any foreign country. Except as set forth on Section 4.24(f) of the Company Disclosure Letter, to the Company’s Knowledge, no Person is infringing, misappropriating, violating or diluting any Intellectual Property or any such rights of the Company or any of its Subsidiaries.
(g) Except as disclosed in Section 4.24(g) of the Company Disclosure Letter: (i) the Software used in connection with the Retained Business or which may be usable by the Retained Business in the future as contemplated by the parties hereto is not subject to any transfer, assignment, change of control, site, equipment, or other Personoperational limitations; (ii) all of the Software is owned by third parties and licensed to the Company and its Subsidiaries and will be available to the Retained Business following consummation of the Merger on the same terms and conditions as currently licensed by the Company and its Subsidiaries, without additional cost or expense (except with respect to commercially available software at market prices); and (viiii) the Company and its Subsidiaries do not own any of the Software.
(h) Except as set forth in Section 4.24(h) of the Company Disclosure Letter, all employees, agents, consultants or contractors who have contributed to or participated in the creation or development of any Intellectual Property or Software on behalf of the Company, its Subsidiaries, or such predecessor in interest, as applicable, either: (i) created such materials in the scope of his or her employment; (ii) was an employee of the Company, its Subsidiaries or such predecessor in interest, as applicable, at the time of creation of such materials; or is a party to a “work-for-hire” agreement under which the Company, its Subsidiaries, or such predecessor in interest, as applicable, is deemed to be the original owner/author of all rights, title and interest therein; or (iii) has executed an assignment in favor of the Company, its Subsidiaries, or such predecessor in interest, as applicable, of all right, title and interest in such material. Except for Intellectual Property or Software licensed from third parties, none of the Intellectual Property or Software used in the conduct of the Retained Business is owned by or registered in the name of any current or former owner, stockholder, member, partner, director, executive, officer, employee, salesman, agent, customer, representative or contractor of the Company, its Subsidiaries, or any of their respective Affiliates or predecessors nor do any such persons have any interest therein or right thereto, including the right to royalty payments.
(i) Other than as set forth in Section 4.24(i) of the Company Disclosure Letter, no third party has any rights to the Intellectual Property as a result of any funding from third parties, including, but not limited to, funding from any Governmental Entity.
(j) To the Knowledge of Sellerthe Company, (i) there is no Person infringesOpen Source Software incorporated or bundled (either directly by the Company, misappropriates or violates indirectly by the incorporation or bundling of third party Software that itself incorporates Open Source Software) into any Intellectual Property owned of the Company’s products or exclusively licensed services; (ii) there is no Open Source Software otherwise used by the Company, whether or to Sellernot incorporated with the Company’s products or services; (iii) there is no Open Source Software that is incorporated into any of the products or services of, in each case except as could notor otherwise used by, individually any third party with whom the Company does business; (iv) the Company has not developed, acquired, licensed, used or otherwise obtained any Software that is now, was previously, or is expected/intended in the aggregatefuture to be Open Source Software; and (v) there is no Open Source Software, reasonably the use of which (by any party) does, or might be expected to to, have a Material Adverse Effectmaterial effect on the Company, its operations or its business.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Schedule 4.12 contains a list and description (showing in each case any product, device, process, service, business or publication covered thereby, the registered or other owner, expiration date and number, if any) of all Copyrights, Patent Rights and Trademarks (including any assumed owned by, licensed to or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Schedule 4.12 contains a list and description (showing in each case any owner, licensor or licensee) of all Software owned by or by, licensed to or used by the Company Company, except for mass market Software licensed to the Company that is commercially available in consumer retail stores and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not Schedule 4.12 contains a party to Contracts list and description (showing in each case the parties thereto and the material terms thereof) of all agreements, contracts, licenses, sublicenses, assignments and indemnities which relate to: to (i) any Copyrights, Patent Rights or Trademarks; Trademarks listed in Schedule 4.12, (ii) any Trade Secrets owned by or by, licensed to or used by the Company; and Company or (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.listed in Schedule 4.12 ..
(d) The Company either: (i) owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used included in its assets and properties, free and clear of any Encumbrance; or (ii) has the Business perpetual, royalty-free right to use the same.
(i) All registrations for Copyrights, Patent Rights and Trademarks identified in Schedule 4.12 as currently conductedbeing owned by the Company are valid and in force, and all applications to register any unregistered Copyrights, Patent Rights and Trademarks so identified are pending and in good standing, all without challenge of any kind; (ii) the Intellectual Property owned by the Company is valid and enforceable; (iii) the Company has the sole and exclusive right to bring actions for infringement or unauthorized use of the Intellectual Property and Software owned by the Company, and to the Knowledge knowledge of Seller and the Company, there is no other Intellectual Property necessary basis for any such action; (iv) the Company has taken all actions reasonably necessary to conduct protect, and where necessary register, the Business Copyrights, Trademarks, Software, Patent Rights or Trade Secrets; and (v) the Company is not in breach of any agreement affecting the Intellectual Property, and has not taken any action which would impair or otherwise adversely affect its rights in the Intellectual Property. Correct and complete copies of: (x) registrations for all registered Copyrights, Patent Rights and Trademarks identified in Schedule 4.12 as currently conductedbeing owned by the Company; and (y) all pending applications to register unregistered Copyrights, Patent Rights and Trademarks identified in Schedule 4.12 as being owned by the Company (together with any subsequent correspondence, notices or filings relating to the foregoing) have heretofore been delivered by Seller to Buyer.
(i) No infringement, misappropriation or violation infringement of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, Property of any other Person has occurred or results in any way from the operation of the Business operations, activities, products, Software, equipment, machinery or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to processes used in the Company’s business; (ii) no claim of any infringement, misappropriation, violation or dilution infringement of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation operations of the BusinessCompany’s business; (iii) no claim of invalidity of any Intellectual Property owned by the Company Copyright, Trademark or Patent Right, Software or Trade Secret has been made by any other Personmade; (iv) no Proceedings proceedings are pending or, to the Knowledge knowledge of Sellerthe Company, threatened that which challenge the validity, ownership or use of any Intellectual Property owned by the CompanyProperty; and (v) neither Seller nor the Company has not had notice of, and, to the Knowledge or knowledge of Seller, there is no any basis for, a claim against the Company Seller that the operations, activities, products, Softwaresoftware, equipment equipment, machinery or processes of the Business infringe, misappropriate, violate or dilute Company infringe any Intellectual Property of any other Person.
(i) The Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipment, or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns (the “Owned Software”) (including all source code and system specifications) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are necessary to protect the proprietary, trade secret or confidential information contained therein; (iii) the Owned Software has been registered or is eligible for protection and registration under applicable copyright law and has not been forfeited to the public domain; (iv) the Company has copies of all prior releases or separate versions of the Owned Software so that the same may be subject to registration in the United States Copyright Office; (v) the Company has complete and exclusive right, title and interest in and to the Owned Software; (vi) the Company has developed the Owned Software through its own efforts and for its own account without the aid or use of any such rights consultants, agents, independent contractors or Persons (other than Persons that are employees of the Company); (vii) the Owned Software does not infringe any Intellectual Property of any other Person; (viii) any Owned Software includes the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), workbenches, tools, and higher level (or “proprietary”) language used for the development, maintenance, implementation and use thereof, so that a trained computer programmer could develop, maintain, enhance, modify, support, compile and use all releases or separate versions of the same that are currently subject to maintenance obligations by the Company; (ix) there are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the Owned Software by any other Person; (x) the Owned Software complies with all applicable Requirements of Laws relating to the export or reexport of the same; and (vixi) the Owned Software may be exported or reexported to all countries without the Knowledge necessity of Sellerany license, no Person infringesother than to those countries specified as prohibited destinations pursuant to applicable regulations of the United States Department of Commerce and/or the United States State Department.
(h) All employees, misappropriates agents, consultants or violates contractors who have contributed to or participated in the creation or development of any Intellectual Property owned or exclusively licensed by Software on behalf of the Company or any predecessor in interest thereto either: (i) is a party to Sellera “work-for-hire” agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title and interest in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectsuch material.
Appears in 1 contract
Intellectual Property; Software. Other than as set forth on Schedule 5.12:
(a) There are no Schedule 4.12 contains a list and description (showing in each case any product, device, process, service, business or publication covered thereby, the registered or other owner, expiration date and number, if any) of all Copyrights, Patent Rights and Trademarks (including any assumed owned by, licensed to or fictitious names used by the Company within the previous two (2) years) owned by or licensed to the Company.
(b) There is no Schedule 4.12 contains a list and description (showing in each case any owner, licensor or licensee) of all Software owned by or by, licensed to or used by the Company Company, except for mass market Software licensed to the Company that is commercially available in consumer retail stores and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not Schedule 4.12 contains a party to Contracts list and description (showing in each case the parties thereto and the material terms thereof) of all agreements, contracts, licenses, sublicenses, assignments and indemnities which relate to: to (i) any Copyrights, Patent Rights or Trademarks; Trademarks listed in Schedule 4.12, (ii) any Trade Secrets owned by or by, licensed to or used by the Company; and Company or (iii) any Software, other than market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementslisted in Schedule 4.12.
(d) The Company either: (i) owns the entire right, title and interest in and to, or has the valid and enforceable right to use, the Intellectual Property and Software used included in its assets and properties, free and clear of any Encumbrance; or (ii) has the Business perpetual, royalty-free right to use the same.
(i) All registrations for Copyrights, Patent Rights and Trademarks identified in Schedule 4.12 as currently conductedbeing owned by the Company are valid and in force, and all applications to register any unregistered Copyrights, Patent Rights and Trademarks so identified are pending and in good standing, all without challenge of any kind; (ii) the Intellectual Property owned by the Company is valid and enforceable; (iii) the Company has the sole and exclusive right to bring actions for infringement or unauthorized use of the Intellectual Property and Software owned by the Company, and to the Knowledge knowledge of Seller Sellers and the Company, there is no other Intellectual Property necessary basis for any such action; (iv) the Company has taken all actions reasonably necessary to conduct protect, and where necessary register, the Business Copyrights, Trademarks, Software, Patent Rights or Trade Secrets; and (v) the Company is not in breach of any agreement affecting the Intellectual Property, and has not taken any action which would impair or otherwise adversely affect its rights in the Intellectual Property. Correct and complete copies of: (x) registrations for all registered Copyrights, Patent Rights and Trademarks identified in Schedule 4.12 as currently conductedbeing owned by the Company; and (y) all pending applications to register unregistered Copyrights, Patent Rights and Trademarks identified in Schedule 4.12 as being owned by the Company (together with any subsequent correspondence, notices or filings relating to the foregoing) have heretofore been delivered by Sellers to Buyer.
(i) No infringement, misappropriation or violation infringement of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, Property of any other Person has occurred or results in any way from the operation of the Business operations, activities, products, Software, equipment, machinery or the use, sale or distribution of any Intellectual Property owned by or licensed exclusively to processes used in the Company’s business; (ii) no claim of any infringement, misappropriation, violation or dilution infringement of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation operations of the BusinessCompany’s business; (iii) no claim of invalidity of any Intellectual Property owned by the Company Copyright, Trademark or Patent Right, Software or Trade Secret has been made by any other Personmade; (iv) no Proceedings proceedings are pending or, to the Knowledge knowledge of Sellerthe Company, threatened that which challenge the validity, ownership or use of any Intellectual Property owned by the CompanyProperty; and (v) neither Sellers nor the Company has not had notice of, and, to the Knowledge or knowledge of Seller, there is no any basis for, a claim against the Company Sellers that the operations, activities, products, Softwaresoftware, equipment equipment, machinery or processes of the Business infringe, misappropriate, violate or dilute Company infringe any Intellectual Property of any other Person.
(i) The Software included in the assets and properties of the Company is not subject to any transfer, assignment, reversion, site, equipment, or other limitations; (ii) the Company has maintained and protected the Software included in the assets and properties of the Company that it owns (the “Owned Software”) (including all source code and system specifications) with appropriate proprietary notices, confidentiality and non-disclosure agreements and such other measures as are necessary to protect the proprietary, trade secret or confidential information contained therein; (iii) the Owned Software has been registered or is eligible for protection and registration under applicable copyright law and has not been forfeited to the public domain; (iv) the Company has copies of all prior releases or separate versions of the Owned Software so that the same may be subject to registration in the United States Copyright Office; (v) the Company has complete and exclusive right, title and interest in and to the Owned Software; (vi) the Company has developed the Owned Software through its own efforts and for its own account without the aid or use of any such rights consultants, agents, independent contractors or Persons (other than Persons that are employees of the Company); (vii) the Owned Software does not infringe any Intellectual Property of any other Person; (viii) any Owned Software includes the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), workbenches, tools, and higher level (or “proprietary”) language used for the development, maintenance, implementation and use thereof, so that a trained computer programmer could develop, maintain, enhance, modify, support, compile and use all releases or separate versions of the same that are currently subject to maintenance obligations by the Company; (ix) there are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the Owned Software by any other Person; (x) the Owned Software complies with all applicable Requirements of Laws relating to the export or reexport of the same; and (vixi) the Owned Software may be exported or reexported to all countries without the Knowledge necessity of Sellerany license, no Person infringesother than to those countries specified as prohibited destinations pursuant to applicable regulations of the United States Department of Commerce and/or the United States State Department.
(h) All employees, misappropriates agents, consultants or violates contractors who have contributed to or participated in the creation or development of any Intellectual Property owned or exclusively licensed by Software on behalf of the Company or any predecessor in interest thereto either: (i) is a party to Sellera “work-for-hire” agreement under which the Company is deemed to be the original owner/author of all property rights therein; or (ii) has executed an assignment or an agreement to assign in favor of the Company (or such predecessor in interest, as applicable) of all right, title and interest in each case except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectsuch material.
Appears in 1 contract
Intellectual Property; Software. Other than as set (A) Schedule 4.12(a) hereto sets forth on Schedule 5.12:
(a) There are no Copyrightscontains a true, Patent Rights correct and Trademarks (including any assumed or fictitious names used by the Company within the previous two (2) years) complete list of all Intellectual Property owned by or Seller (the “Owned Proprietary Rights”). Schedule 4.12(a) hereto also lists each material license for Intellectual Property licensed to by Seller (the Company“Licensed Proprietary Rights”).
(bB) There is no Software owned by or licensed to the Company except for mass market Software licensed to the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreements.
(c) The Company is not a party to Contracts which relate to: Except as disclosed in Schedule 4.12(b), (i) to the best of Seller’s Knowledge, the operation of the business of Seller, including the use of the Owned Proprietary Rights, does not infringe or misappropriate or otherwise materially violate the Intellectual Property rights of any Copyrightsthird party, Patent Rights or Trademarks; and no claim is pending or, to the knowledge of Seller, threatened against Seller alleging any of the foregoing, (ii) any Trade Secrets owned by Seller owns, or licensed with respect to the Company; Licensed Proprietary Rights, licenses all of the Intellectual Property necessary for the conduct of the business of Seller, and (iii) except for the Owned Proprietary Rights and the Licensed Proprietary Rights, no material right, license, lease, consent, or other agreement is required with respect to any Software, other than market Software licensed to Intellectual Property for the Company that is commercially available and subject to “shrink-wrap” or “click-through” license agreementsconduct of the business of Seller.
(dC) The Company owns Subject only to the terms of the licenses listed on Schedule 4.12(c) or licenses that are immaterial to the Ordinary Course of Business of the Company, or except as disclosed in Schedule 4.12(c), Seller is (i) the sole owner of the entire and unencumbered right, title and interest in and toto each item of the Owned Proprietary Rights, or has and (ii) entitled to use the valid Owned Proprietary Rights and enforceable right Licensed Proprietary Rights in the ordinary course of its business to use, the Intellectual Property and Software extent such Proprietary Rights are used in the Business as currently conducted, and to the Knowledge of Seller there is no other Intellectual Property necessary for the Company to conduct the Business as currently conducted.
(i) No infringement, misappropriation or violation of any Intellectual Property, or any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information, of any other Person has occurred or results in any way from the operation of the Business business of the Company.
(D) Except as disclosed in Schedule 4.12(d), the Owned Proprietary Rights and Licensed Proprietary Rights include all of the material Intellectual Property used in the Business, and there are no other items of Intellectual Property that are material to the Business.
(E) Schedule 4.12(e) lists all material correspondence and all written opinions in its possession relating to potential infringement or the use, sale or distribution misappropriation (i) by Seller of any Intellectual Property owned by proprietary rights of any third party or licensed exclusively to the Company; (ii) no claim by any third party of any infringement, misappropriation, violation or dilution of any Intellectual Property or any such rights of any other Person has been made or asserted in respect of the operation of the Business; Owned Proprietary Rights or Licensed Proprietary Rights.
(iiiF) no claim of invalidity of any Intellectual Property owned by the Company has been made by any other Person; (iv) no Proceedings are pending orExcept as disclosed in Schedule 4.12(f), to the Knowledge of Seller, threatened no third party is engaging in any activity that challenge infringes or misappropriates the validityOwned Proprietary Rights or Licensed Proprietary Rights.
(G) Seller has a license to use all software development tools, ownership or use library functions, compilers and other third-party software that are used in the operation of any Intellectual Property owned by the Company; (v) the Company has not had notice of, and, Business and are material to the Knowledge Business, taken as a whole. To the knowledge of Seller, there is no basis for, a claim against the Company that the operations, activities, products, Software, equipment or processes of all material software used in the Business infringeis free of all viruses, misappropriateworms and trojan horses, violate and does not contain any critical bugs, errors, or dilute any Intellectual Property or any such rights of any other Person; and (vi) to the Knowledge of Seller, no Person infringes, misappropriates or violates any Intellectual Property owned or exclusively licensed by or to Sellerproblems, in each case except as could not, individually or in the aggregate, that reasonably would be expected to have a Material Adverse Effectmaterial adverse impact on the Business, taken as a whole.
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