Common use of Company Intangible Property Clause in Contracts

Company Intangible Property. (i) Except as set forth in SECTION 5.2(O) of the Company Disclosure Schedule, the Company owns, or is licensed, or otherwise possesses legally enforceable rights, to use, sell or license, as applicable, all Proprietary Rights (excluding in each case Commercial Software) used, sold, distributed or licensed in or as a part of the business of the Company and its Subsidiaries as currently conducted (the "COMPANY PROPRIETARY RIGHTS"). Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, the Company has licenses for all copies of Commercial Software used in its business and the Company does not have any obligation to pay fees, royalties and other amounts at any time pursuant to any such license. (ii) Except for Company Embedded Products for which the Company has valid non-exclusive licenses that are adequate for the conduct of the Company's business, the Company is the sole and exclusive owner of the Company Proprietary Rights (free and clear of any Encumbrances), and, except for non-exclusive licenses and non-exclusive reseller agreements entered into in the ordinary course of business, has sole and exclusive rights to the use and distribution therefor of the material covered thereby in connection with the services or products in respect of which such Company Proprietary Rights are currently being used, sold, licensed or distributed in the course of or as part of the business of the Company and its Subsidiaries as currently conducted. The Company is not contractually obligated to pay compensation to any third party with respect to the use or distribution of any Company Proprietary Rights, except pursuant to the contracts set forth in SECTION 5.2(O) of the Company Disclosure Schedule. (iii) Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, to the Knowledge of the Company (A) the Company has not infringed on any intellectual property rights of any third Persons and (B) none of the Company Proprietary Rights infringes on any intellectual property rights of any third Persons, except as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on the Company. (iv) Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, no actions, suits, claims, investigations or proceedings with respect to the Company Proprietary Rights (other than Company Embedded Products) are pending or, to the Knowledge of the Company, threatened by any Person, (A) alleging that the manufacture, sale, license, distribution or use of any Company Proprietary Rights as now manufactured, sold, licensed, distributed or used by the Company or any third party infringes on any intellectual property rights of any third party, (B) against the use or distribution by the Company or any third party of any Company Proprietary Rights or (C) challenging the ownership by the Company or validity of any Company Proprietary Rights. (v) Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, the Company has not entered into any agreement, contract or commitment under which the Company is restricted, and the Company is not otherwise restricted, from (A) selling, licensing or otherwise distributing any products to any class or type of customers or directly or through any type of channel in any geographic area or during any period of time, or (B) combining, incorporating, embedding or bundling or allowing others to combine, incorporate, embed or bundle any of its products with those of another party, as each such restriction may effect any product currently being developed, marketed or sold by the Company or that otherwise would have a Material Adverse Effect on the Company. (vi) The Company has taken reasonable security measures to safeguard and maintain its rights in all of the Company Proprietary Rights. To the Company's Knowledge, except as set forth in SECTION 5.2(O) of the Company Disclosure Schedule, all copies of the source code to Company Software and Company trade secrets are physically in the control of the Company at the Company's facilities. All officers, employees and consultants of the Company who have access to proprietary information have executed and delivered to the Company an agreement regarding the protection of proprietary information, and the assignment to or ownership by the Company of all Company Proprietary Rights arising from the services performed for the Company by such Persons. To the Knowledge of the Company, no current or prior officers, employees or consultants of the Company have asserted a claim, and the Company is not aware of any grounds to assert a claim to, any ownership interest in any Company Proprietary Right as a result of having been involved in the development of such property while employed by or consulting to the Company or otherwise. (vii) All authors of the software included in the Company Proprietary Rights (the "COMPANY SOFTWARE") or any other Person who participated in the development of the Company Software or any portion thereof or performed any work related to the Company Software (such authors and other persons or entities are collectively referred to as the "COMPANY SOFTWARE AUTHORS") made his or her contribution to the Company Software within the scope of employment with the Company, as a "work made for hire," and was directed by the Company to work on the Company Software, or as a consultant who assigned all rights to such products to the Company. Except as set forth in SECTION 5.2(O) of the Company Disclosure Schedule, the Company Software and every portion thereof are an original creation of the Company Software Authors and do not contain any source code or portions of source code (including any "canned program") created by any persons other than the Company Software Authors. The Company has not, by any of its acts or omissions, or by acts or omissions of its affiliates, directors, officers, employees, agents, or representatives caused any of its proprietary rights in the Company Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected except to such as would not, either individually or in the aggregate, have a Material Adverse Effect on the Company. (viii) There are no material defects in the Company's software products, and such products shall perform in substantial accordance with related documentation and promotional material supplied by Company, and there are no material errors in any documentation, specifications, manuals, user guides, promotional material, internal notes and memos, technical documentation, drawings, flow charts, diagrams, source language statements, demo disks, benchmark test results, and other written materials related to, associated with or used or produced in the development of the Company's software products. Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, to the Knowledge of the Company, computer software included in the Company Proprietary Rights does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (as these terms are commonly used in the computer software industry), or other software routines designed to permit unauthorized access, to disable or erase software or data, or to perform any other similar type of functions.

Company Intangible Property. (i) Except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company owns, or is licensed, or otherwise possesses legally enforceable rights, to use, sell or license, as applicable, all Proprietary Rights (excluding in each case Commercial Software) used, sold, distributed or licensed in or as a part of the business of the Company and its Subsidiaries as currently conducted (the "COMPANY PROPRIETARY RIGHTSCompany Proprietary Rights"). Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company has licenses for all copies of Commercial Software used in its business and the Company does not have any obligation to pay fees, royalties and other amounts at any time pursuant to any such license. (ii) Except for Commercial Software and Company Embedded Products for which the Company has valid non-exclusive licenses that are adequate for the conduct of the Company's business, the Company is the sole and exclusive owner of the Company Proprietary Rights (free and clear of any Encumbrances), and, except for non-exclusive licenses and non-exclusive reseller agreements entered into in the ordinary course of business, has sole and exclusive rights to the use and distribution therefor of or the material covered thereby in connection with the services or products in respect of which such Company Proprietary Rights are currently being used, sold, licensed or distributed in the course of or as part of the business of the Company and its Subsidiaries as currently conducteddistributed. The Company is not contractually obligated to pay compensation to any third party with respect to the use or distribution of any Company Proprietary Rights, except pursuant to the contracts Contracts set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule. (iii) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, to the Knowledge of the Company (A) the Company has not materially infringed on any intellectual property rights of any third Persons and (B) none of the Company Proprietary Rights materially infringes on any intellectual property rights of any third Persons, except as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on the Company. (iv) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, no actions, suits, claims, investigations or proceedings with respect to the Company Proprietary Rights (other than Company Embedded Products) are pending or, to the Knowledge of the Company, threatened by any Person, (A) alleging that the manufacture, sale, licenselicensing, distribution distributing or use of any Company Proprietary Rights as now manufactured, sold, licensed, distributed or used by the Company or any third party infringes on any intellectual property rights of any third partyparty or the Company, (B) against the use or distribution by the Company or any third party of any technology, know-how or computer software used in the business of the Company Proprietary Rights and its Subsidiaries as currently conducted or (Ciii) challenging the ownership by the Company Company, validity or validity effectiveness of any such Company Proprietary Rights. (v) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company has not entered into any agreement, contract or commitment under which the Company is restricted, and the Company is not otherwise restricted, from (A) selling, licensing or otherwise distributing any products to any class or type of customers or directly or through any type of channel in any geographic area or during any period of time, or (B) combining, incorporating, embedding or bundling or allowing others to combine, incorporate, embed or bundle any of its products with those of another party, as each such restriction may effect any product currently being developed, marketed or sold by the Company or that otherwise would have a Material Adverse Effect on the Company. (vi) The Company has taken reasonable security measures to safeguard and maintain its rights in all of the Company Proprietary Rights. To the Company's Knowledge, except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, all copies of the source code to Company Software and Company trade secrets are physically in the control of the Company at the Company's facilities. All officers, employees and consultants of the Company who have access to proprietary information have executed and delivered to the Company an agreement regarding the protection of proprietary information, and the assignment to or ownership by the Company of all Company Proprietary Rights arising from the services performed for the Company by such Persons. To the Knowledge of the Company, no current or prior officers, employees or consultants of the Company have asserted a claim, and the Company is not aware of any grounds to assert a claim to, any ownership interest in any Company Proprietary Right as a result of having been involved in the development of such property while employed by or consulting to the Company or otherwise. (vii) All authors of the software included in the Company Proprietary Rights (the "COMPANY SOFTWARECompany Software") or any other Person who participated in the development of the Company Software or any portion thereof or performed any work related to the Company Software (such authors and other persons or entities are collectively referred to as the "COMPANY SOFTWARE AUTHORSCompany Software Authors") made his or her contribution to the Company Software within the scope of employment with the Company, as a "work made for hire," and was directed by the Company to work on the Company Software, or as a consultant who assigned all rights to such products to the Company. Except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company Software and every portion thereof are an original creation of the Company Software Authors and do not contain any source code or portions of source code (including any "canned program") created by any persons other than the Company Software Authors. The Company has not, by any of its acts or omissions, or by acts or omissions of its affiliates, directors, officers, employees, agents, or representatives caused any of its proprietary rights in the Company Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected except to such as would not, either individually or in the aggregate, have a Material Adverse Effect on the Companyany material extent. (viii) There are no material defects in the Company's software products, and such products shall perform in substantial accordance with related documentation and promotional material supplied by Company, and there are no material errors in any documentation, specifications, manuals, user guides, promotional material, internal notes and memos, technical documentation, drawings, flow charts, diagrams, source language statements, demo disks, benchmark test results, and other written materials related to, associated with or used or produced in the development of the Company's software products. Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, to the Knowledge of the Company, computer software included in the Company Proprietary Rights does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (as these terms are commonly used in the computer software industry), or other software routines designed to permit unauthorized access, to disable or erase software or data, or to perform any other similar type of functions.

Company Intangible Property. (i) Except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company owns, or is licensed, or otherwise possesses legally enforceable rights, to use, sell or license, as applicable, all Proprietary Rights (excluding in each case Commercial Software) used, sold, distributed or licensed in or as a part of the business of the Company and its Subsidiaries as currently conducted (the "COMPANY PROPRIETARY RIGHTSCompany Proprietary Rights"). Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company has licenses for all copies of Commercial Software used in its business and the Company does not have any obligation to pay fees, royalties and other amounts at any time pursuant to any such license. (ii) Except for Company Software and Company Embedded Products for which the Company has valid non-exclusive licenses that are adequate for the conduct of the Company's business, the Company is the sole and exclusive owner of the Company Proprietary Rights (free and clear of any Encumbrances), and, except for non-exclusive licenses and non-exclusive reseller and OEM agreements entered into in the ordinary course of business, has sole and exclusive rights to the use and distribution therefor of the material covered thereby in connection with the services or products in respect of which such Company Proprietary Rights are currently being used, sold, licensed or distributed in the course of or as part of the business of the Company and its Subsidiaries as currently conducted. The Company is not contractually obligated to pay compensation to any third party with respect to the use or distribution of any Company Proprietary Rights, except pursuant to the contracts set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule. (iii) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, to the Knowledge of the Company (A) the Company 35 39 has not infringed on any intellectual property rights of any third Persons and (B) none of the Company Proprietary Rights infringes on any intellectual property rights of any third Persons, except as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on the Company. (iv) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, no actions, suits, claims, investigations or proceedings with respect to the Company Proprietary Rights (other than Company Embedded Products) are pending or, to the Knowledge of the Company, threatened by any Person, (A) alleging that the manufacture, sale, license, distribution or use of any Company Proprietary Rights as now manufactured, sold, licensed, distributed or used by the Company or any third party infringes on any intellectual property rights of any third party, (B) against the use or distribution by the Company or any third party of any Company Proprietary Rights or (C) challenging the ownership by the Company or validity of any Company Proprietary Rights. (v) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company has not entered into any agreement, contract or commitment under which the Company is restricted, and the Company is not otherwise restricted, from (A) selling, licensing or otherwise distributing any products to any class or type of customers or directly or through any type of channel in any geographic area or during any period of time, or (B) combining, incorporating, embedding or bundling or allowing others to combine, incorporate, embed or bundle any of its products with those of another party, as each such restriction may effect any product currently being developed, marketed or sold by the Company or that otherwise would have a Material Adverse Effect on the Company. (vi) The Company has taken reasonable security measures to safeguard and maintain its rights in all of the Company Proprietary Rights. To the Company's Knowledge, except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, all copies of the source code to Company Software and Company trade secrets are physically in the control of the Company at the Company's facilities. All officers, employees and consultants of the Company who have access to proprietary information have executed and delivered to the Company an agreement regarding the protection of proprietary information, and the assignment to or ownership by the Company of all Company Proprietary Rights arising from the services performed for the Company by such Persons. To the Knowledge of the Company, no current or prior officers, employees or consultants of the Company have asserted a claim, and the Company is not aware of any grounds to assert a claim to, any ownership interest in any Company Proprietary Right as a result of having been involved in the development of such property while employed by or consulting to the Company or otherwise. . 36 40 (vii) All To the Knowledge of the Company, all authors of the software included in the Company Proprietary Rights (the "COMPANY SOFTWARECompany Software") or any other Person who participated in the development of the Company Software or any portion thereof or performed any work related to the Company Software (such authors and other persons or entities are collectively referred to as the "COMPANY SOFTWARE AUTHORSCompany Software Authors") made his or her contribution to the Company Software within the scope of employment with the Company, as a "work made for hire," and was directed by the Company to work on the Company Software, or as a consultant who assigned all rights to such products to the Company. Except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, to the Knowledge of the Company, the Company Software and every portion thereof are an original creation of the Company Software Authors and do not contain any source code or portions of source code (including any "canned program") created by any persons other than the Company Software Authors. The Company has not, by any of its acts or omissions, or or, to its Knowledge, by acts or omissions of its affiliates, directors, officers, employees, agents, or representatives caused any of its proprietary rights in the Company Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected except to such as would not, either individually or in the aggregate, have a Material Adverse Effect on the Companyany material extent. (viii) There are no material defects in the Company's software products, and such products shall perform in substantial accordance with related documentation and promotional material supplied by Company, and there are no material errors in any documentation, specifications, manuals, user guides, promotional material, internal notes and memos, technical documentation, drawings, flow charts, diagrams, source language statements, demo disks, benchmark test results, and other written materials related to, associated with or used or produced in the development of the Company's software products. Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, to the Knowledge of the Company, computer software included in the Company Proprietary Rights does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (as these terms are commonly used in the computer software industry), or other software routines designed to permit unauthorized access, to disable or erase software or data, or to perform any other similar type of functions.

Company Intangible Property. (i) SECTION 2.2(l) of the Company Disclosure Schedule sets forth a true, correct and complete list of all Company Intangible Property owned or used in business by the Company, CISAC and their respective subsidiaries, as well as all registrations thereof and pending applications therefor, and indicates, with respect to each item of Company Intangible Property listed thereon, the owner thereof and, if applicable, the name of the licensor and licensee thereof and the material terms of such license or other contract relating thereto. Except as set forth in SECTION 5.2(O2.2(l) of the Company Disclosure Schedule, the Company owns, or is licensed, or otherwise possesses legally enforceable rights, to use, sell or license, as applicable, all Proprietary Rights (excluding in each case Commercial Software) used, sold, distributed or licensed in or as a part of the business of the Company and its Subsidiaries as currently conducted (the "COMPANY PROPRIETARY RIGHTS"). Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, the Company has licenses for all copies of Commercial Software used in its business and the Company does not have any obligation to pay fees, royalties and other amounts at any time pursuant to any such license. (ii) Except for Company Embedded Products for which the Company has valid non-exclusive licenses that are adequate for the conduct of the Company's business, the Company foregoing is the sole and exclusive owner of the Company Proprietary Rights (owned free and clear of any Encumbrances)and all Liens, andand none of the Company, except for non-exclusive licenses and non-exclusive reseller agreements entered into in the ordinary course CISAC or any of business, their respective subsidiaries has sole and exclusive rights received any notice to the use and distribution therefor effect that any other entity has any claim of the material covered thereby in connection with the services or products in respect of which such Company Proprietary Rights are currently being used, sold, licensed or distributed in the course of or as part of the business of the Company and its Subsidiaries as currently conducted. The Company is not contractually obligated to pay compensation to any third party ownership with respect to the use or distribution of any Company Proprietary Rights, except pursuant to the contracts thereto. Except as set forth in SECTION 5.2(O) of the Company Disclosure Schedule. (iii) Except as disclosed in SECTION 5.2(O2.2(l) of the Company Disclosure Schedule, to the Knowledge of the Company (A) or CISAC, the Company has use of the foregoing by the Company, CISAC and their respective subsidiaries does not infringed on conflict with, infringe upon, violate or interfere with or constitute an appropriation of any right, title, interest or goodwill, including, without limitation, any intellectual property rights right, patent, trademark, trade name, service xxxx, brand xxxx, brand name, computer program, industrial design, copyright or any pending application therefor of any third Persons and (B) none of the Company Proprietary Rights infringes on any intellectual property rights of any third Persons, except as would not, individually other Person or in the aggregate, be reasonably expected to result in a Material Adverse Effect on the Company. (iv) entity. Except as disclosed set forth in SECTION 5.2(O2.2(l) of the Company Disclosure Schedule, no actionsclaims have been made, suits, claims, investigations or proceedings with respect to the Company Proprietary Rights (other than Company Embedded Products) are pending or, to the Knowledge and none of the Company, threatened by CISAC or any Personof their respective subsidiaries has received any notice, (A) alleging that nor does the manufactureCompany, sale, license, distribution CISAC or use any of their respective subsidiaries have any Knowledge of any Company Proprietary Rights as now manufacturedbasis for any claims that any of the foregoing is invalid, sold, licensed, distributed or used by conflicts with the Company or any third party infringes on any intellectual property asserted rights of any third partyother entities, or has been used or enforced (Bor has failed to be used or enforced) against in a manner that would result in the use abandonment, cancellation or distribution by the Company or any third party unenforceability of any material item of Company Proprietary Rights or (C) challenging the ownership by the Company or validity of any Company Proprietary Rights. (v) Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, the Company has not entered into any agreement, contract or commitment under which the Company is restricted, and the Company is not otherwise restricted, from (A) selling, licensing or otherwise distributing any products to any class or type of customers or directly or through any type of channel in any geographic area or during any period of time, or (B) combining, incorporating, embedding or bundling or allowing others to combine, incorporate, embed or bundle any of its products with those of another party, as each such restriction may effect any product currently being developed, marketed or sold by the Company or that otherwise would have a Material Adverse Effect Intangible Property. There are no restrictions on the Company. (vi) The Company has taken reasonable security measures to safeguard and maintain its rights in all of the Company Proprietary Rights. To the Company's Knowledge, except as set forth in SECTION 5.2(O) of the Company Disclosure Schedule, all copies of the source code to Company Software and Company trade secrets are physically in the control of the Company at the Company's facilities. All officers, employees and consultants of the Company who have access to proprietary information have executed and delivered to the Company an agreement regarding the protection of proprietary information, and the assignment to or ownership by the Company of all Company Proprietary Rights arising from the services performed for the Company by such Persons. To the Knowledge ability of the Company, no current CISAC or prior officers, employees or consultants any of their respective subsidiaries to use any portion of the Company have asserted a claim, and Intangible Property in connection with any customer or among the Company is not aware various customers of any grounds to assert a claim to, any ownership interest in any Company Proprietary Right as a result of having been involved in the development of such property while employed by or consulting to the Company or otherwisethem. (viiii) All authors The Company, CISAC and each of the their respective subsidiaries possesses all Company Intangible Property, including, without limitation, all know-how, formulae, software included in the Company Proprietary Rights (the "COMPANY SOFTWARE") or any other Person who participated in the development of the Company Software or any portion thereof or performed any work related to the Company Software (such authors and other persons or entities are collectively referred to as the "COMPANY SOFTWARE AUTHORS") made his or her contribution to the Company Software within the scope of employment with the Company, as a "work made for hire," and was directed by the Company to work on the Company Software, or as a consultant who assigned all rights to such products to the Company. Except as set forth in SECTION 5.2(O) of the Company Disclosure Schedule, the Company Software and every portion thereof are an original creation of the Company Software Authors and do not contain any source code or portions of source code (including any "canned program") created by any persons other than the Company Software Authors. The Company has not, by any of its acts or omissions, or by acts or omissions of its affiliates, directors, officers, employees, agents, or representatives caused any of its proprietary rights in the Company Software, including copyrights, trademarks, and trade secrets to be transferredrights and trade secrets, diminished, or adversely affected except to such necessary for the conduct of their businesses in all material respects as would not, either individually or in the aggregate, have a Material Adverse Effect on the Company. (viii) There are no material defects in the Company's software products, and such products shall perform in substantial accordance with related documentation and promotional material supplied by Company, and there are no material errors in any documentation, specifications, manuals, user guides, promotional material, internal notes and memos, technical documentation, drawings, flow charts, diagrams, source language statements, demo disks, benchmark test results, and other written materials related to, associated with or used or produced in the development of the Company's software productsnow conducted. Except as disclosed in SECTION 5.2(O) of the Company Disclosure Schedule, to the Knowledge None of the Company, computer software included CISAC or any of their respective subsidiaries has taken or failed to take any action that would result in the forfeiture or relinquishment of any such Company Proprietary Rights does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (as these terms are commonly Intangible Property used in the computer software industry)conduct of their respective businesses as now conducted. The execution of this Agreement or the completion of the transactions contemplated hereby will not result in the forfeiture, relinquishment, violation, breach, termination, cancellation or other software routines designed right of termination of any agreement or license relating to permit unauthorized accessthe Company Intangible Property used in the conduct of the Company's, to disable CISAC's or erase software or data, or to perform any other similar type of functionstheir subsidiaries' respective businesses as now conducted.

Company Intangible Property. (i) Except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company owns, or is licensed, or otherwise possesses legally enforceable rights, to use, sell or license, as applicable, all Proprietary Rights (excluding in each case Commercial Software) used, sold, distributed or licensed in or as a part of the business of the Company and its Subsidiaries as currently conducted (the "COMPANY PROPRIETARY RIGHTSCompany Proprietary Rights"). Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company has licenses for all copies of Commercial Software used in its business and the Company does not have any obligation to pay fees, royalties and other amounts at any time pursuant to any such license.. 28 (ii) Except for Commercial Software and Company Embedded Products for which the Company has valid non-exclusive licenses that are adequate for the conduct of the Company's business, the Company is the sole and exclusive owner of the Company Proprietary Rights (free and clear of any Encumbrances), and, except for non-exclusive licenses and non-exclusive reseller agreements entered into in the ordinary course of business, has sole and exclusive rights to the use and distribution therefor of or the material covered thereby in connection with the services or products in respect of which such Company Proprietary Rights are currently being used, sold, licensed or distributed in the course of or as part of the business of the Company and its Subsidiaries as currently conducteddistributed. The Company is not contractually obligated to pay compensation to any third party with respect to the use or distribution of any Company Proprietary Rights, except pursuant to the contracts Contracts set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule. (iii) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, to the Knowledge of the Company (A) the Company has not materially infringed on any intellectual property rights of any third Persons and (B) none of the Company Proprietary Rights materially infringes on any intellectual property rights of any third Persons, except as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on the Company. (iv) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, no actions, suits, claims, investigations or proceedings with respect to the Company Proprietary Rights (other than Company Embedded Products) are pending or, to the Knowledge of the Company, threatened by any Person, (A) alleging that the manufacture, sale, licenselicensing, distribution distributing or use of any Company Proprietary Rights as now manufactured, sold, licensed, distributed or used by the Company or any third party infringes on any intellectual property rights of any third partyparty or the Company, (B) against the use or distribution by the Company or any third party of any technology, know-how or computer software used in the business of the Company Proprietary Rights and its Subsidiaries as currently conducted or (Ciii) challenging the ownership by the Company Company, validity or validity effectiveness of any such Company Proprietary Rights. (v) Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company has not entered into any agreement, contract or commitment under which the Company is restricted, and the Company is not otherwise restricted, from (A) selling, licensing or otherwise distributing any products to any class or type of customers or directly or through any type of channel in any geographic area or during any period of time, or (B) combining, incorporating, embedding or bundling or allowing others to combine, incorporate, embed or bundle any of its products with those of another party, as each such restriction may effect any product currently being developed, marketed or sold by the Company or that otherwise would have a Material Adverse Effect on the Company. (vi) The Company has taken reasonable security measures to safeguard and maintain its rights in all of the Company Proprietary Rights. To the Company's Knowledge, except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, all copies of the source code to Company Software and Company trade secrets are physically in the control of the Company at the Company's facilities. All officers, employees and consultants of the Company who have access to proprietary information have executed and delivered to the Company an agreement regarding the protection of proprietary information, and the assignment to or ownership by the Company of all Company Proprietary Rights arising from the services performed for the Company by such Persons. To the Knowledge of the Company, no current or prior officers, employees or consultants of the Company have asserted a claim, and the Company is not aware of any grounds to assert a claim to, any ownership interest in any Company Proprietary Right as a result of having been involved in the development of such property while employed by or consulting to the Company or otherwise. (vii) All authors of the software included in the Company Proprietary Rights (the "COMPANY SOFTWARECompany Software") or any other Person who participated in the development of the Company Software or any portion thereof or performed any work related to the Company Software (such authors and other persons or entities are collectively referred to as the "COMPANY SOFTWARE AUTHORSCompany Software Authors") made his or her contribution to the Company Software within the scope of employment with the Company, as a "work made for hire," and was directed by the Company to work on the Company Software, or as a consultant who assigned all rights to such products to the Company. Except as set forth in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, the Company Software and every portion thereof are an original creation of the Company Software Authors and do not contain any source code or portions of source code (including any "canned program") created by any persons other than the Company Software Authors. The Company has not, by any of its acts or omissions, or by acts or omissions of its affiliates, directors, officers, employees, agents, or representatives caused any of its proprietary rights in the Company Software, including copyrights, trademarks, and trade secrets to be transferred, diminished, or adversely affected except to such as would not, either individually or in the aggregate, have a Material Adverse Effect on the Companyany material extent. (viii) There are no material defects in the Company's software products, and such products shall perform in substantial accordance with related documentation and promotional material supplied by Company, and there are no material errors in any documentation, specifications, manuals, user guides, promotional material, internal notes and memos, technical documentation, drawings, flow charts, diagrams, source language statements, demo disks, benchmark test results, and other written materials related to, associated with or used or produced in the development of the Company's software products. Except as disclosed in SECTION 5.2(OSection 5.2(o) of the Company Disclosure Schedule, to the Knowledge of the Company, computer software included in the Company Proprietary Rights does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" (as these terms are commonly used in the computer software industry), or other software routines designed to permit unauthorized access, to disable or erase software or data, or to perform any other similar type of functions.