Common use of Licenses; Agreements Clause in Contracts

Licenses; Agreements. (i) The Company has not granted any options, licenses or agreements of any kind relating to any Company-Owned Intellectual Property outside of normal nonexclusive end use terms of service entered into by end users of the Company Products in the ordinary course (copies of which have been provided to Acquirer), and the Company is not bound by or a party to any option, license or agreement of any kind with respect to any of the Company-Owned Intellectual Property. (ii) The Company is not obligated to pay any royalties or other payments to third parties with respect to the marketing, sale, distribution, manufacture, license or use of any Company Products or Company-Owned Intellectual Property or any other property or rights. (iii) Schedule 2.10(k) of the Company Disclosure Letter accurately identifies: (A) each Contract pursuant to which any Intellectual Property Rights are or have been licensed, sold, assigned or otherwise conveyed or provided to the Company (other than: (1) agreements between the Company and its employees in the Company’s standard form thereof; (2) nonexclusive licenses to third party software that is not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business); and (3) non-exclusive licenses to third party software that is (I) not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business, and (II) licensed under a “shrink-wrap,” “click-through” or other form of end user license agreement and is generally commercially available for a license fee of no more than $5,000; and (4) non-disclosure, evaluation and confidentiality agreements that are entered into in the ordinary course of business); and (B) whether the licenses or rights granted to the Company in each such Contract are exclusive or non-exclusive. (iv) Subject to the exclusions set out in Section 2.10(k)(iii), the Company has made available to Acquirer a complete and accurate copy of each standard form of Company Intellectual Property Agreements currently (or, previously, if the previous form differed in any substantive way) used by the Company which may include a standard form of: (i) end user license agreement; (ii) development agreement; (iii) employee agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (iv) consulting or independent contractor agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (v) confidentiality or nondisclosure agreement; or (vi) Company User Agreement. Subject to the exclusions set out in Section 2.10(k)(iii), Schedule 2.10(k)(iv) of the Company Disclosure Letter accurately identifies each Company Intellectual Property Agreement that deviates in any material respect from the corresponding standard form agreement delivered to Acquirer, including any agreement with an employee, consultant or independent contractor in which the employee, consultant or independent contractor expressly reserved or retained any Intellectual Property Rights related to the Company’s business, research or development.

Licenses; Agreements. (ii)(i) The Company of the Seller Disclosure Schedule sets forth a complete and accurate list of all Contracts under which Seller grants to a third party any rights under or with respect to any Business Intellectual Property or Business Product (each an "Outbound License Agreement"), other than non-disclosure agreements, evaluation licenses and non-exclusive end-user licenses or service agreements granted by Seller to Seller's customers in the ordinary course of business (collectively, "Ordinary Course Out-Licenses"). Except for Outbound License Agreements set forth in Section 3.15(i)(i) of the Seller Disclosure Schedule and Ordinary Course Out-Licenses, Seller has not granted any options, licenses or agreements of any kind relating to any Company-Owned Business Intellectual Property outside or Business Products, including any covenant or other provision that in any way limits or restricts the ability of normal nonexclusive end use terms of service entered into by end users Seller to use, assert, enforce, or otherwise exploit any Business Intellectual Property or Business Products anywhere in the world. Section 3.15(i)(ii) of the Company Products in the ordinary course (copies Seller Disclosure Schedule sets forth a complete and accurate list of all Contracts under which have been provided a third party grants to Acquirer), and the Company is not bound by Seller any rights under or a party to any option, license or agreement of any kind with respect to any Intellectual Property Rights included in or used in (i) the development of the Company-Owned Intellectual Property. Business Products, or (ii) The Company is not obligated to pay any royalties or other payments to third parties with respect to the marketing, sale, distribution, manufacture, license or use of any Company Products or Company-Owned Intellectual Property or any other property or rights. (iii) Schedule 2.10(k) operation of the Company Disclosure Letter accurately identifies: Business (A) each Contract pursuant each, an "Inbound License Agreement"), other than licenses for commercially available "off-the-shelf" software licensed to which any Intellectual Property Rights are or have been licensedSeller in object code form ("Shrink-Wrap Licenses"), soldlicenses of Open Source Materials, assigned or otherwise conveyed or provided to the Company (other than: (1) agreements between the Company and its employees in the Company’s standard form thereof; (2) nonexclusive licenses to third party software that is not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business); and (3) non-exclusive licenses to third party software that is (I) not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business, and (II) licensed under a “shrink-wrap,” “click-through” or other form of end user license agreement and is generally commercially available for a license fee of no more than $5,000; and (4) non-disclosuredisclosure agreements, evaluation licenses and confidentiality agreements standard licenses granted to Seller that are entered into contained in Seller’s Ordinary Course Out-Licenses in the ordinary course of businessbusiness (collectively, "Ordinary Course In-Licenses"); and (B) whether the licenses or rights granted to the Company in each such Contract are exclusive or non-exclusive. (iv) Subject to the exclusions set out in Section 2.10(k)(iii), the Company has made available to Acquirer a complete and accurate copy of each standard form of Company Intellectual Property Agreements currently (or, previously, if the previous form differed in any substantive way) used by the Company which may include a standard form of: (i) end user license agreement; (ii) development agreement; (iii) employee agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (iv) consulting or independent contractor agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (v) confidentiality or nondisclosure agreement; or (vi) Company User Agreement. Subject to the exclusions set out in Section 2.10(k)(iii), Schedule 2.10(k)(iv) of the Company Disclosure Letter accurately identifies each Company Intellectual Property Agreement that deviates in any material respect from the corresponding standard form agreement delivered to Acquirer, including any agreement with an employee, consultant or independent contractor in which the employee, consultant or independent contractor expressly reserved or retained any Intellectual Property Rights related to the Company’s business, research or development.

Licenses; Agreements. (i) The Schedule 2.10(k)(i) of the Company has Disclosure Letter lists, as of the Agreement Date, all Outbound Licenses (other than: (A) Standard Customer Contracts, (B) Contracts providing primarily for confidentiality and non-use obligations related to confidential information (i.e., non-disclosure agreements) entered into in the ordinary course of business consistent with past practice, and that does not granted grant any optionslicense, licenses option or agreements of any kind other right relating to any Company-Owned Intellectual Property outside material to the Business (“NDAs”), (C) Contracts granting non-exclusive rights under Company-Owned Intellectual Property to a third party solely for the purposes of normal nonexclusive end use terms of service entered into by end users providing services to, for, or on behalf of the Company Products in the ordinary course of business consistent with past practice, (“Service Provider Licenses”), (D) employee invention assignment agreements and consulting agreements on the Company’s standard form of agreement, copies of which have been provided made available to AcquirerAcquirer (“Personnel Agreements”), and (E) Contracts granting non-exclusive licenses to trademarks or service marks owned by Company where such license is merely incidental to the Company transactions contemplated in such Contracts, the commercial purpose of which is not bound by or a party to any option, primarily for something other than such license or agreement and where such Contracts are entered into in the ordinary course of any kind business consistent with respect to any of the Company-Owned Intellectual Propertypast practice) (“Incidental Trademark Licenses”). (ii) The Schedule 2.10(k)(ii) of the Company Disclosure Letter lists, as of the Agreement Date, all Inbound Licenses (other than: (A) Standard Inbound Licenses, (B) licenses to Open Source Materials, (C) Personnel Agreements, or (D) NDAs). (iii) Other than fees payable to Governmental Entities and domain name registrars for the filing, prosecution and maintenance of Company Registered Intellectual Property, the Company is not obligated to pay any royalties or other payments to third parties with respect to the marketing, sale, distribution, manufacture, license or use of any Company Products or Company-Owned Intellectual Property or any other property or rights. (iii) Schedule 2.10(k) of the Company Disclosure Letter accurately identifies: (A) each Contract pursuant to which any Intellectual Property Rights are or have been licensed, sold, assigned or otherwise conveyed or provided to the Company (other than: (1) agreements between the Company and its employees in the Company’s standard form thereof; (2) nonexclusive licenses to third party software that is not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business); and (3) non-exclusive licenses to third party software that is (I) not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business, and (II) licensed under a “shrink-wrap,” “click-through” or other form of end user license agreement and is generally commercially available for a license fee of no more than $5,000; and (4) non-disclosure, evaluation and confidentiality agreements that are entered into in the ordinary course of business); and (B) whether the licenses or rights granted to the Company in each such Contract are exclusive or non-exclusiveProperty. (iv) Subject At and immediately after the Closing, the Surviving Corporation (as a wholly-owned subsidiary of Acquirer) will be permitted exercise all of the Company’s rights under all Inbound Licenses and all Outbound Licenses to the exclusions set out same extent the Company would have been able to, had the Transactions not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments that the Company would otherwise be required to pay. (v) No Contract to which the Company is a party or by which the Company is bound requires the Company to include any Third-Party Intellectual Property in Section 2.10(k)(iii)any Company Product or obtain any Person’s approval of any Company Product at any stage of development, licensing, distribution or sale of that Company Product. (vi) None of the Outbound Licenses grants any third party the right to sublicense any Company Intellectual Property. (vii) No third party that has licensed Intellectual Property to the Company has made available ownership or license rights to Acquirer a complete and accurate copy improvements or derivative works of each standard form of Company such Intellectual Property Agreements currently (or, previously, if the previous form differed in any substantive way) used made by the Company which may include a standard form of: (i) end user license agreement; (ii) development agreement; (iii) employee agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (iv) consulting or independent contractor agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (v) confidentiality or nondisclosure agreement; or (vi) Company User Agreement. Subject to the exclusions set out in Section 2.10(k)(iii), Schedule 2.10(k)(iv) of the Company Disclosure Letter accurately identifies each Company Intellectual Property Agreement that deviates in any material respect from the corresponding standard form agreement delivered to Acquirer, including any agreement with an employee, consultant or independent contractor in which the employee, consultant or independent contractor expressly reserved or retained any Intellectual Property Rights related to the Company’s business, research or development.

Licenses; Agreements. Section 2.8(k)(i) of the Company Disclosure Schedule sets forth a complete and accurate list of all Contracts under which the Company grants to a third party any rights under or with respect to any Company Owned Intellectual Property or Company Product (ieach an “Outbound License Agreement”), other than non-disclosure agreements, evaluation licenses and non-exclusive end-user licenses or service agreements granted by the Company to the Company’s customers in the ordinary course of business (collectively, “Ordinary Course Out-Licenses”). Except for Outbound License Agreements set forth in Section 2.8(k)(i) The of the Company Disclosure Schedule and Ordinary Course Out-Licenses, the Company has not granted any options, licenses or agreements of any kind relating to any Company-Owned Intellectual Property outside of normal nonexclusive end use terms of service entered into by end users of the Company Products in the ordinary course (copies of which have been provided to Acquirer), and the Company is not bound by or a party to any option, license or agreement of any kind with respect to any of the Company-Owned Intellectual Property. (ii) The Company is not obligated to pay any royalties or other payments to third parties with respect to the marketing, sale, distribution, manufacture, license or use of any Company Products or Company-Owned Intellectual Property or Company Products, including any covenant or other property provision that in any way limits or rights. (iii) Schedule 2.10(krestricts the ability of the Company to use, assert, enforce, or otherwise exploit any Company Owned Intellectual Property or Company Products anywhere in the world. Section 2.8(k)(iii) of the Company Disclosure Letter accurately identifies: (A) each Contract pursuant Schedule sets forth a complete and accurate list of all Contracts under which a third party grants to which the Company any rights under or with respect to any Intellectual Property Rights are included in or have been licensedused in (i) the development of Company Products, soldor (ii) the operation of the Company’s business (each, assigned or otherwise conveyed or provided an “Inbound License Agreement”), other than licenses for commercially available “off-the-shelf” software licensed to the Company in object code form (other than: (1) agreements between “Shrink-Wrap Licenses”), licenses of Open Source Materials, non-disclosure agreements, evaluation licenses and standard licenses granted to the Company and its employees that are contained in the Company’s standard form thereof; (2) nonexclusive licenses to third party software that is not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business); and (3) nonOrdinary Course Out-exclusive licenses to third party software that is (I) not incorporated into, or used in the development, testing, distribution, maintenance or support of, any Company Products and that is not otherwise material to the Company’s Business, and (II) licensed under a “shrink-wrap,” “click-through” or other form of end user license agreement and is generally commercially available for a license fee of no more than $5,000; and (4) non-disclosure, evaluation and confidentiality agreements that are entered into Licenses in the ordinary course of businessbusiness (collectively, “Ordinary Course In-Licenses”); and (B) whether the licenses or rights granted to the Company in each such Contract are exclusive or non-exclusive. (iv) Subject to the exclusions set out in Section 2.10(k)(iii), the Company has made available to Acquirer a complete and accurate copy of each standard form of Company Intellectual Property Agreements currently (or, previously, if the previous form differed in any substantive way) used by the Company which may include a standard form of: (i) end user license agreement; (ii) development agreement; (iii) employee agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (iv) consulting or independent contractor agreement containing any assignment or license of Intellectual Property or Intellectual Property Rights or any confidentiality provision; (v) confidentiality or nondisclosure agreement; or (vi) Company User Agreement. Subject to the exclusions set out in Section 2.10(k)(iii), Schedule 2.10(k)(iv) of the Company Disclosure Letter accurately identifies each Company Intellectual Property Agreement that deviates in any material respect from the corresponding standard form agreement delivered to Acquirer, including any agreement with an employee, consultant or independent contractor in which the employee, consultant or independent contractor expressly reserved or retained any Intellectual Property Rights related to the Company’s business, research or development.