Common use of Company Software Clause in Contracts

Company Software. (a) Section 4.39 of the Company Disclosure Schedule sets forth a true and complete list of all software programs, systems and applications (A) designed or developed or under development by employees of the Company or by consultants on the Company's behalf including all documentation therefor (the "OWNED SOFTWARE") or (B) licensed by the Company from any third party or constituting "off-the-shelf" software (the "LICENSED SOFTWARE"), in each case that is manufactured or used by the Company in the operation of its business (collectively, the "SOFTWARE") and, in the case of Licensed Software, Section 4.39 of the Company Disclosure Schedule identifies each license agreement with respect thereto. (b) All of the Owned Software are original works of authorship and are protected by the copyright laws of the United States. The Company owns all right, title and interest in and to the Owned Software, and all copyrights thereto, free and clear of all Liens, claims, encumbrances, charges, pledges, restrictions or rights of third parties of any kind whatsoever ("ENCUMBRANCES"), and has not sold, assigned, licensed, distributed or in any other way disposed of or subjected the Owned Software to any Encumbrance. None of the Owned Software incorporates, is based on or is a derivative work of any third party code that is subject to the terms of a public source license or otherwise imposes conditions on the terms and conditions under which the Owned Software may be used or distributed. To the knowledge of the Company, no other person is currently infringing upon the rights of the Company with respect to the Owned Software. No claim has been asserted against the Company to the effect that the use of any Owned Software by the Company infringes the rights of any person. (c) The Licensed Software is validly held and used by the Company and may be used by the Company pursuant to the applicable license agreement with respect thereto without the consent of, notice to, or payment of any royalty or any other fee to any third party and is fully and freely utilizable by the Buyer without the consent of, notice to or payment of any royalty to any third party. All of the Company's computer hardware has validly licensed software installed therein and the Company's use thereof does not conflict with or violate any such license. No claim has been asserted against the Company to the effect that the use of any Licensed Software by the Company infringes the rights of any person. (d) To the knowledge of the Company, the Software is free from any significant software defect, is free from any programming, documentation error or virus ("BUGS") not consistent with commercially reasonable industry standards acceptable for such Bugs, operates and runs in a reasonable and efficient business manner, conforms to the specifications thereof, and, with respect to the Owned Software, the applications can be compiled from their associated source code without undue burden. (e) The Company has not altered its data, or any Software or supporting software that may in turn damage the integrity of the data, whether stored in electronic, optical or magnetic or other form. The Company has made available to Buyer all documentation in its possession relating to the use, maintenance and operation of the Software, all of which is true and accurate in all material respects (to the Company's knowledge, with respect to the Licensed Software). (f) The Software owned or licensed by the Company as of the Closing is sufficient as of the Closing Date for the uses of the Business as it is Currently Conducted.

Company Software. (ai) Section 4.39 3.1(1)(i) of the Company Disclosure Schedule sets forth a true and complete list of all software programs, systems and applications (A) designed or developed or under development by employees of the Company or by consultants on the Company's behalf including all documentation therefor (the "OWNED SOFTWAREOwned Software") or (B) licensed by the Company from any third party or constituting "off-the-shelf" software (the "LICENSED SOFTWARELicensed Software"), in each case that is manufactured or used by the Company in the operation of its business or marketed, licensed or sold by the Company to third parties (collectively, the "SOFTWARESoftware") and, in the case of Licensed Software, Section 4.39 3.1(l)(i) of the Company Disclosure Schedule identifies each license agreement with respect thereto.; (bii) All of the Owned Software are original works of authorship and are protected by the copyright laws of the United States. The Company owns all right, title and interest in and to the Owned Software, and all copyrights thereto, free and clear of all Liens, claims, encumbrances, charges, pledges, restrictions or rights of third parties of any kind whatsoever ("ENCUMBRANCES"), Encumbrance and has not sold, assigned, licensed, distributed or in any other way disposed of or subjected the Owned Software to any Encumbrance. None of the Owned Software incorporates, is based on or is a derivative work of any third party code that is subject to the terms of a public source license or otherwise imposes conditions on the terms and conditions under which the Owned Software may be used or distributed. To the knowledge of the Company, no other person is currently infringing upon the rights of the Company with respect to the Owned Software. No claim has been asserted against the Company to the effect that the use of any Owned Software by the Company infringes the rights of any person.; (ciii) The Licensed Software is validly held and used by the Company and may be used by the Company pursuant to the applicable license agreement with respect thereto without the consent of, of or notice to, or payment of any royalty or any other fee to any third party and is fully and freely utilizable by the Buyer Surviving Corporation or Parent without the consent of, of or notice to or payment of any royalty to any third party. All of the Company's computer hardware has validly licensed software installed therein and the Company's use thereof does not conflict with or violate any such license. No claim has been asserted against the Company to the effect that the use of any Licensed Software by the Company infringes the rights of any person.; (div) To the knowledge of the Company, the Software is free from any significant software defect, is free from any programming, documentation error or virus ("BUGSBugs") not consistent with commercially reasonable industry standards acceptable for such Bugs, operates and runs in a reasonable and efficient business manner, conforms to the specifications thereof, and, with respect to the Owned Software, the applications can be compiled from their associated source code without undue burden.; (ev) The Company has not altered its data, or any Software or supporting software that may in turn damage the integrity of the data, whether stored in electronic, optical or magnetic or other form. The Company has made available to Buyer furnished Parent with all documentation in its possession relating to the use, maintenance and operation of the Software, all of which is true and accurate in all material respects respects; and (vi) The Company's Owned Software and Licensed Software (including existing products Owned Software and technology and Owned Software and technology currently under development) used in the operation of the business as presently conducted have been designed, written and tested to, and will at all times (i) record, store, process, calculate, manage, manipulate and present calendar dates falling before, on and after (and if applicable, spans of time including) December 31, 1999, including, without limitation, single-century formulas and multi-century formulas and (ii) create, calculate, recognize, accept, display, store, retrieve, accent, compare, sort, manipulate, or process any information dependent on or relating to such dates or otherwise provide use of dates or date-dependent or date-related data, including, but not limited to, century recognition, Section 3.1 (h)(vi) of the Company Disclosure Schedule describes all software, hardware, databases or embedded control systems not owned or developed by the Company that is or are licensed for or otherwise used by the Company in the operation of its business as presently conducted and as proposed to be conducted and the nature and extent of the Company's knowledgeknowledge and inquiry regarding the degree to which all such hardware, with respect to the Licensed Software)software, databases or embedded control systems are Year 2000 Compliant. (f) The Software owned or licensed by the Company as of the Closing is sufficient as of the Closing Date for the uses of the Business as it is Currently Conducted.

Company Software. (a) Set forth on Section 4.39 2.13(a) of the Company Disclosure Schedule sets forth is a complete and true and complete list of all material software programs, systems and applications (A) designed or developed or under development by employees of the Company or by consultants on the Company's behalf including all documentation therefor (the "OWNED SOFTWAREOwned Software") or (B) licensed by the Company from any third party or constituting "off-the-off the shelf" software (the "LICENSED SOFTWARELicensed Software"), in each case that is used or manufactured or used by the Company in the operation of its business as currently conducted (collectively, the "SOFTWARESoftware") and, ). The execution and delivery of this Agreement and consummation of the Merger will not result in the case breach of, or create on behalf of Licensed any third party the right to terminate or modify, any material license, sublicense or other agreement relating to any Company Intellectual Property or any Software, Section 4.39 of the Company Disclosure Schedule identifies each license agreement with respect thereto. (b) All of the Owned Software are original works of authorship and are protected by the copyright laws of the United States. The Company owns all right, title and interest in and to the Owned Software, Software and all copyrights thereto, free and clear of all Liensliens, claims, encumbrances, charges, pledges, restrictions or rights of third parties of any kind whatsoever ("ENCUMBRANCES"), and has not sold, assigned, licensed, distributed or in any other way disposed of or subjected the Owned Software to any Encumbrancelien, claim, encumbrance, charge, pledge, or restriction. None of the Owned Software incorporates, is based on or is a derivative work of any third party code that is subject to the terms of a public source license or otherwise imposes conditions on the terms and conditions under which the Owned Software may be used or distributed. To the knowledge of the Company, no other person is currently infringing upon the rights of the Company with respect to the Owned Software. No claim has been asserted against the Company to the effect that the use of any Owned Software by the Company infringes the rights of any person. (c) The Licensed Software is validly held and used by the Company and may be used by the Company pursuant to the applicable license agreement with respect thereto as set forth on Schedule 2.13(c) of the Company Disclosure Schedule without the consent of, notice to, or payment of any royalty or any other fee to any third party and is fully and freely utilizable usable by the Buyer Surviving Corporation without the consent of, notice to or payment of any royalty to any third party. , All of the Company's computer hardware has validly licensed software installed therein and the Company's use thereof does not conflict with or violate any such license. No claim has been asserted against the Company, and the Company has no knowledge of any basis for an assertion against the Company, to the effect that the use of any Licensed Software by the Company infringes the rights of any personthird party. (d) To the knowledge of the Company, the Owned Software is free from any significant software defect, is free from any programming, documentation error or virus (collectively, "BUGSBugs") not consistent with commercially reasonable industry standards acceptable for such Bugs, operates and runs in a reasonable and efficient business manner, conforms in all material respects to the all specifications thereof, and, with respect to the Owned Software, the applications can be reasonably compiled from their associated source code without undue burdencode. (e) The Company has not altered its data, or any Software or supporting software that may in turn damage the integrity of the data, whether stored in electronic, optical or magnetic or other form. The Company has made available to the Buyer all documentation in its possession relating to the use, maintenance and operation of the Software, all of which is true and accurate in all material respects (to the Company's knowledge, with respect to the Licensed Software)respects. (f) The Software owned or licensed by the Company as of the Closing is sufficient as of the Closing Date for the uses of the Business as it is Currently Conducted.

Company Software. (ai) Section 4.39 3.1(l)(i) of the Company Disclosure Schedule sets forth a true and complete list and description of all software programs, systems and applications (A) designed or developed or under development by employees of the Company or by consultants on the Company's behalf including all documentation therefor (the "OWNED SOFTWAREOwned Software") or (B) licensed by the Company from any third party or party, other than software constituting "off-the-shelf" software (the "LICENSED SOFTWARELicensed Software"), in each case that is manufactured or used by the Company in the operation of its business or marketed, licensed or sold or proposed to be marketed, licensed or sold by the Company to third parties (collectively, the "SOFTWARESoftware") and, in the case of Licensed Software, Section 4.39 3.1(l)(i) of the Company Disclosure Schedule identifies each license agreement with respect thereto. (bii) All of the Owned Software are original works of authorship and are protected by the copyright laws of the United States. The Company owns all right, title and interest in and to the Owned Software, and all copyrights thereto, free and clear of all Liens, claims, encumbrances, charges, pledges, restrictions or rights of third parties of any kind whatsoever ("ENCUMBRANCES"), Encumbrance and has not sold, assigned, licensed, distributed or in any other way disposed of or subjected the Owned Software to any Encumbrance. None of the Owned Software incorporates, is based on or is a derivative work of any third party code that is subject to the terms of a public source license or otherwise imposes conditions on the terms and conditions under which the Owned Software may be used or distributed. To the knowledge of the Company, no other person is currently infringing upon the rights of the Company with respect to the Owned Software. No claim has been asserted against the Company to the effect that the use of any Owned Software by the Company infringes the rights of any person. (ciii) The Licensed Software is validly held and used by the Company and may be used is fully utilizable by the Company pursuant to the applicable license agreement with respect thereto without the consent of, of or notice to, or payment of any royalty or any other fee to any third party and is fully and freely utilizable by the Buyer Surviving Corporation or Parent without the consent of, of or notice to or payment of any royalty to any third party. All of the Company's computer hardware has validly licensed software installed therein and the Company's use thereof does not conflict with or violate any such license. No claim has been asserted against the Company to the effect that the use of any Licensed Software by the Company infringes the rights of any person. (div) To The Owned Software and, to the best knowledge of the CompanyCompany and the Founders, the Software Licensed Software, is free from any significant software defect, is free from any programming, defect or programming or documentation error or virus ("BUGS") not consistent with commercially reasonable industry standards acceptable for such Bugserror, operates and runs in a reasonable and efficient business manner, substantially conforms to the specifications thereof, and, with respect to the Owned Software, the applications can be compiled from their associated source code without undue burden. (ev) The Company has Software does not altered its data, contain any bugs or any Software or supporting software that may in turn damage the integrity of the data, whether stored in electronic, optical or magnetic or other formviruses not consistent with commercially reasonable industry standards acceptable for bugs. The Company has made available to Buyer furnished Parent with all documentation in its possession relating to the use, maintenance and operation of the SoftwareSoftware listed on Section 3.1(l)(v) of the Company Disclosure Schedule, all of which is true and accurate in all material respects accurate. (to vi) Except as set forth on Section 3.1(l)(vi) of the Company Disclosure Schedule, the Company's knowledgeproducts, with respect hardware, databases, firmware, embedded control systems, Owned Software and Licensed Software (including existing products Software and technology and Software and technology currently under development) used in the operation of the business as presently conducted and as proposed to be conducted have been designed, written and tested to, and will at all times (i) record, store, process, calculate, manage, manipulate and present calendar dates falling before, on and after (and if applicable, spans of time including) December 31, 1999, including, without limitation, single-century formulas and multi-century formulas and (ii) create, calculate, recognize, accept, display, store, retrieve, accent, compare, sort, manipulate, or process any information dependent on or relating to such dates or otherwise provide use of dates or date-dependent or date-related data, including, but not limited to, century recognition, day-of-the Licensed Softwareweek recognition, leap years, date values and interfaces of date functionalities, without loss of accuracy, functionality, data integrity and performance and will provide that all date-related data and user interface functionalities and data fields include the indication of century (collectively, "Year 2000 Compliant"). Section 3.1 (fl)(vi) The Software of the Company Disclosure Schedule describes all software, hardware, databases or embedded control systems not owned or licensed developed by the Company that is or are licensed for or otherwise used by the Company in the operation of its business as presently conducted and as proposed to be conducted and the nature and extent of the Closing is sufficient as Company's knowledge and inquiry regarding the degree to which all such hardware, software, databases or embedded control systems are Year 2000 Compliant. (vii) Since the inception of the Closing Date for Company, the uses of Company has not, to any material extent, (A) defaulted under any software or development contract, (B) failed to meet any product specifications or characteristics or software or development milestones and standards thereunder, (C) failed to properly interface any computer software program with the Business as it is Currently Conductedintended operating system software or related hardware designs applicable thereto, or (D) had any party to any software or development contract terminate said contract or notify the Company that such party intends to terminate any such contract.