Common use of Shared Software Clause in Contracts

Shared Software. The Parties acknowledge and agree that the members of the Seller Group and the Acquired Companies may each require rights to use the Software set forth in Section 6.4(b) of the Sellers Disclosure Letter currently owned or licensed by the applicable members of the Seller Group (the “Shared Software”). Notwithstanding anything to the contrary set forth in this Agreement, the Parties acknowledge and agree that, following the Closing Date, the Shared Software shall continue to be owned by the applicable members of the Seller Group or licensed to the applicable members of the Seller Group by a third party. (i) With respect to Shared Software that is owned by a member of the Seller Group and freely transferable to an Acquired Company (“Proprietary Shared Software”), notwithstanding anything herein to the contrary, at or prior to the Closing, the applicable member of the Seller Group shall transfer or cause to be transferred to one or more Acquired Companies selected by Parent an equal and undivided joint ownership interest, without any duty to account to each other for the exploitation thereof, in and to all such Proprietary Shared Software. At or prior to the Closing, Liz Foreign shall, or shall cause the applicable members of the Seller Group (solely with respect to the Proprietary Shared Software) to, cause one working copy of the then-current version of all Proprietary Shared Software (including all source code and associated documentation related thereto) to be delivered to an Acquired Company selected by Parent. The Acquired Companies shall be free to use, distribute, reproduce, modify, create derivative works of and otherwise exploit the Proprietary Shared Software for any purposes, without restriction of any kind, and without any duty to account to the other (it being understood that each Party shall use reasonable best efforts to maintain the confidentiality of the source code to such Proprietary Shared Software and only disclose such source code to third parties on a need to know basis in the ordinary course of business). Following the Closing, the members of the Seller Group, on the one hand, and the Acquired Companies, on the other hand, shall retain ownership of all modifications or derivative works made by such party to the Proprietary Shared Software, or on such party’s behalf, with no obligation to disclose or license such modifications or derivative works to the other party. The Acquired Companies, on the one hand, and the members of the Seller Group, on the other hand, shall be free to transfer, assign, license or otherwise divest their respective interest in and to the Proprietary Shared Software, in whole or in part, without the prior consent of the other party. Notwithstanding anything to the contrary set forth in this Agreement, the Sellers expressly disclaim any and all representations or warranties that the Proprietary Shared Software, in the form delivered to the Acquired Companies, without the licensing of the third party Software or the use of the hardware specified in Section 6.4(b)(i) of the Sellers Disclosure Letter, is capable of replicating the functionality for which such Proprietary Shared Software is used by the members of the Seller Group. (ii) With respect to Shared Software that is licensed to a member of the Seller Group by a third party (“Licensed Shared Software”), Liz Foreign shall, and shall cause the applicable members of the Seller Group (solely with respect to such Licensed Shared Software) to, use its reasonable best efforts to cause each applicable Software licensor either (x) to consent to the grant to the Acquired Companies by the applicable member of the Seller Group (solely with respect to such Licensed Shared Software) of a sublicense to use the Licensed Shared Software after the Closing in substantially the same manner that the Licensed Shared Software was used in connection with the Mexx Europe Business prior to the Closing, with all expenses associated with such sublicense to be borne by the Buyers or following the Closing, the Acquired Companies (as applicable); or (y) to enter into a separate license with the Acquired Companies providing for the use of the Licensed Shared Software in connection with the Mexx Europe Business; provided, however, in each case, that such cooperation shall not require any member of the Seller Group or any of its Affiliates to expend money, commence any Legal Action or offer or grant any accommodation (financial or otherwise) to any third party.

Shared Software. The Parties acknowledge and agree that the members of the Seller Group LCCI and the Acquired Companies CanCo may each require rights to use the Software set forth in Section 6.4(b6.3(b) of the Sellers Disclosure Letter currently owned or licensed by the applicable members of the Seller Group Sellers (the “Shared Software”). Notwithstanding anything to the contrary set forth in this Agreement, the Parties acknowledge and agree that, following the Closing Date, the Shared Software shall continue to be owned by the applicable members of the Seller Group or licensed to the applicable members of the Seller Group by a third party. (i) With respect to Shared Software that is owned by a member of the Seller Group LCCI and freely transferable to an Acquired Company CanCo (“Proprietary Shared Software”), notwithstanding anything herein to the contrary, at or prior to the Closing, the applicable member of the Seller Group LCCI shall transfer or cause to be transferred to one or more Acquired Companies selected by Parent CanCo an equal and undivided joint ownership interest, without any duty to account to each other for the exploitation thereof, in and to all such Proprietary Shared Software. At or prior to the Closing, Liz Foreign shall, or LCCI shall cause the applicable members of the Seller Group (solely with respect to the Proprietary Shared Software) to, cause one working copy of the then-current version of all Proprietary Shared Software (including all source code and associated documentation related thereto) to be delivered to an Acquired Company selected by ParentCanCo. The Acquired Companies LCCI and CanCo shall be free to use, distribute, reproduce, modify, create derivative works of and otherwise exploit the Proprietary Shared Software for any purposes, without restriction of any kind, and without any duty to account to the other (it being understood that each Party shall use its reasonable best efforts to maintain the confidentiality of the source code to such Proprietary Shared Software and only disclose such source code to third parties on a need to know basis in the ordinary course of business). Following the Closing, the members of the Seller GroupLCCI, on the one hand, and the Acquired CompaniesCanCo, on the other hand, shall retain ownership of all modifications or derivative works made by such party to the Proprietary Shared Software, or on such partyParty’s behalf, with no obligation to disclose or license such modifications or derivative works to the other partyParty. The Acquired CompaniesCanCo, on the one hand, and the members of the Seller GroupLCCI, on the other hand, shall be free to transfer, assign, license or otherwise divest their respective interest in and to the Proprietary Shared Software, in whole or in part, without the prior consent of the other partyParty. Notwithstanding anything herein to the contrary set forth in this Agreement, the Sellers expressly disclaim any and all representations or warranties that the Proprietary Shared Software, in the form delivered to the Acquired CompaniesCanCo, without the licensing of the third third-party Software or the use of the hardware specified in Section 6.4(b)(i6.3(b)(i) of the Sellers Disclosure Letter, is capable of replicating the functionality for which such Proprietary Shared Software is used by the members of the Seller GroupLCCI. (ii) With respect to Shared Software that is licensed to a member of the Seller Group LCCI by a third party (“Licensed Shared Software”), Liz Foreign shall, and shall cause the applicable members of the Seller Group (solely with respect to such Licensed Shared Software) to, LCCI will use its reasonable best efforts to cause each applicable Software licensor either (x) to consent to the grant to the Acquired Companies CanCo by the applicable member of the Seller Group (solely with respect to such Licensed Shared Software) LCCI of a sublicense to use the Licensed Shared Software after the Closing in substantially the same manner that the Licensed Shared Software was used in connection with the Mexx Europe Canada Business prior to the Closing, with all expenses associated with such sublicense to be borne by the Buyers or following the Closing, the Acquired Companies (as applicable)CanCo; or (y) to enter into a separate license with the Acquired Companies CanCo providing for the use of the Licensed Shared Software in connection with the Mexx Europe Canada Business; provided, however, in each case, that such cooperation shall not require any member of the Seller Group or any of its Affiliates to expend money, commence any Legal Action or offer or grant any accommodation (financial or otherwise) to any third party.