Information Technology. (a) Section 3.8(a) of the Seller Disclosure Schedule contains (i) a list of all leases relating to the IT Systems and (ii) a listing of the IT Systems, the name of the facility and location where the IT Systems used in connection with the Business are operated. (b) Sellers are the exclusive owners of, or have contractual rights to use the IT Systems free from Liens, except for Permitted Liens, and no Seller has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating to the IT Systems. (c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation of the Business as currently conducted. (d) Each of Sellers is in material compliance with any Contracts related to Intellectual Property used in the operation of the IT Systems. (e) To the Knowledge of Sellers, the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software). (f) Sellers have adopted, maintained and enforced commercially reasonable policies regarding use and integrity of the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs of the Business as currently operated, including as data transport, data storage, capacity and scalability; and the IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the operation of the Business as currently operated. (g) The IT Systems have been reasonably maintained and supported, and, if and to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement. (h) In the past three (3) years: (i) there has been no failure, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incident. (i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access thereto.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Digital Media Solutions, Inc.), Asset Purchase Agreement (Digital Media Solutions, Inc.)
Information Technology. (a) Section 3.8(a) The Company has taken commercially reasonable precautions to preserve and document the Company’s and its Subsidiaries’ material proprietary products, technology and trade secrets and to protect the secrecy, confidentiality and value of the Seller Disclosure Schedule contains (i) a list of all leases relating to the IT Systems its material proprietary products, technology and (ii) a listing of the IT Systems, the name of the facility and location where the IT Systems used in connection with the Business are operatedtrade secrets.
(b) Sellers The Company and its Subsidiaries either own or hold valid leases and/or licenses to the Company Systems which are used by or necessary for the exclusive owners ofCompany and/or its Subsidiaries to conduct their respective businesses as currently conducted. Upon the consummation of the transactions contemplated hereunder, or the Company and its Subsidiaries shall have contractual rights the right to use and access the IT Company Systems free from Liens, except for Permitted Liens, and no Seller has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating as required to the IT Systems.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation of the Business carry on their respective businesses as currently conducted.
(c) None of the Company, any of its Subsidiaries nor, to the Knowledge of the Company, any IT Contract Supplier is, or during the 12 months preceding the date of this Agreement, has been in material breach or violation of or material default under any IT Contract with respect to the provision of information and communications technology services to the Company or any of its Subsidiaries.
(d) Each of Sellers is in material compliance with any Contracts related The Company maintains and, to Intellectual Property used in the operation Knowledge of the Company, each IT SystemsContract Supplier who manages the Company Systems maintains, appropriate disaster recovery plans and security procedures with respect to the services to the Company and its Subsidiaries.
(e) To Since January 1, 2008, there have been no material interruptions, malfunctions, data losses or similar incidents attributable to the Knowledge Company Systems owned or used by the Company or its Subsidiaries. The Company Systems owned or used by the Company and its Subsidiaries are adequate in all material respects for their intended use, have the capacity and performance necessary to meet in all material respects the requirements of Sellers, the IT Systems their respective businesses as currently conducted and Software of Sellers do not contain Harmful Codeare in good working condition (normal wear and tear excepted). Sellers The Company and its Subsidiaries have taken commercially all reasonable steps in accordance with industry standards to secure such Company Systems from unauthorized access or use by any Person, and implemented commercially reasonable safeguards to ensure that the IT Systems continued, uninterrupted and Software are error-free from Harmful Code (including preventative steps and safeguards for operation of such IT Systems and Software)Company Systems.
(f) Sellers have adoptedAs used herein, maintained and enforced commercially reasonable policies regarding use and integrity of “Company Systems” means the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs of the Business as currently operated, including as data transport, data storage, capacity and scalability; and the IT Systems are in good working condition to perform material computing, information technology computer and data processing operations necessary for the operation of the Business as currently operated.
(g) The IT Systems have been reasonably maintained and supportedsystems, and, if and to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunderservice agreements, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In the past three (3) years: (i) there has been no failureinformation, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Sellerrecordkeeping, (ii) the IT Systems have not been subject to any Security Incidentaccount management, account management, communications technologies and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incident.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up computer systems (including electrical powerall computer programs, telecommunicationssoftware, heatingdatabases, ventilatingfirmware, air conditioning hardware and water systemsrelated documentation) and disaster recovery plans, procedures Internet websites and facilities that reasonably ensure related content used in the continuing availability businesses of the functionalities provided by the IT Systems Company and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access theretoSubsidiaries.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Silverleaf Resorts Inc)
Information Technology. (a) Section 3.8(a4.23(a) of the Seller Disclosure Schedule contains sets forth a list and description of all Software developed or commissioned by the Seller or any of its Subsidiaries for use in its business.
(i) a list of all leases relating to the IT Systems All such listed Software performs substantially in conformance with its documentation, is free from any material software defect, and does not contain any Unauthorized Code; (ii) a listing of the IT SystemsAssets owned, used or held for use by the name of Seller and its Subsidiaries have been maintained in accordance with the facility and location where prevailing standards in the Seller’s industry; (iii) the IT Systems Assets owned, used in connection with or held for use by the Business are operated.
(b) Sellers are the exclusive owners of, or have contractual rights to use the IT Systems free from Liens, except for Permitted Liens, Seller and no Seller has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating to the IT Systems.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation of the Business as currently conducted.
(d) Each of Sellers is in material compliance with any Contracts related to Intellectual Property used in the operation of the IT Systems.
(e) To the Knowledge of Sellers, the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software).
(f) Sellers have adopted, maintained and enforced commercially reasonable policies regarding use and integrity of the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs of the Business as currently operated, including as data transport, data storage, capacity and scalability; and the IT Systems Subsidiaries are in good working condition to effectively operate and perform in all material computingrespects in accordance with their documentation and functional specifications and otherwise as required by the Seller and its Subsidiaries in connection with the business; (iv) the Seller has made backups of all such Software (specifically including all databases); and (v) to the Company’s Knowledge, information technology and no Person has gained unauthorized access to the IT Assets or any data processing operations necessary for the operation of the Business as currently operatedtherein.
(gb) Except for scheduled or routine maintenance, the IT Assets used by the Seller and its Subsidiaries are, taken as a whole, available for use during normal working hours. The IT Systems Seller and its Subsidiaries have been reasonably maintained implemented reasonable backup and supported, and, if disaster recovery technology consistent with industry practices for the data and information critical to the extent a Seller is a party to maintenance or support Contracts in respect conduct of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreementits business.
(hc) In With respect to each item of listed Software, the past three Seller and its Subsidiaries are in possession and control of the applicable source code, object code, and documentation required for use, distribution, maintenance and support of the Software as used, distributed, maintained or supported in the business of the Seller and its Subsidiaries. To the Company’s Knowledge, neither the Seller nor any of its Subsidiaries has disclosed Software source code to anyone (3aside from the developers) yearsother than pursuant to a confidentiality agreement that reasonably protects the Seller’s and its Subsidiaries’ rights in the Software.
(d) None of the Software owned by or licensed exclusively to the Seller or any of its Subsidiaries is subject to the provisions of any open source or other type of license agreement or distribution model that: (i) there has been no failure, breakdown requires the distribution or continued substandard performance making available of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Sellersource code, (ii) the IT Systems have not been subject to prohibits or limits charging a fee or receiving consideration in connection with licensing, sublicensing or distributing any Security Incidentsoftware, and (iii) no Seller has received except as specifically permitted by law, grants any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice right to any customers Person or other similarlyotherwise allows any Person to decompile, disassemble or reverse-situated Persons engineer any Software, or (iv) requires the licensing of any Security Incident pursuant to applicable Laws requiring notice Software for the purpose of such a Security Incidentmaking derivative works.
(ie) Sellers The Seller and each of its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up complied with all Internet domain name registration and other requirements of data and information material to the conduct of the Business Internet domain registrars concerning Internet domain names that are used in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access theretobusiness.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Avon Products Inc)
Information Technology. (a) Section 3.8(a) of The ICT Infrastructure that is currently used in the Seller Disclosure Schedule contains business: (i) a list constitutes all the information and communications technology and other systems infrastructure reasonably necessary to carry on the business, including having sufficient capacity and maintenance and support requirements to satisfy the requirements of all leases relating the business as currently conducted and for the 180 days following the Effective Date with regard to the IT Systems information and communications technology, data processing and communications; and (ii) a listing operates in good working order and functions in accordance with all applicable documentation and specifications without any substandard performance or defect in any part of the IT Systems, the name of the facility and location where the IT Systems used in connection with the Business are operatedICT Infrastructure.
(b) Sellers are the exclusive owners ofCorporation and its Subsidiaries have implemented and maintain reasonable security, or have contractual rights to use the IT Systems free from Liens, except for Permitted Liensdisaster recovery and business continuity plans consistent with industry practices of companies offering similar services, and no Seller acts in compliance therewith and has received written notice from tested such plans on a third party alleging that periodic basis, and such Seller is currently in default under any license or lease relating to the IT Systemsplans have proven effective upon testing.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation Section 29(c) of the Business as currently conductedCorporation Disclosure Letter identifies and describes each distinct electronic or other repository or database containing (in whole or in part) Corporation Data maintained by or for Corporation or its Subsidiaries at any time (collectively, the “Corporation Databases”), the types of Corporation Data in each such database (including by Corporation Licensed Data and Corporation Owned Data), the means by which the Corporation Data was collected or received and the security policies that have been adopted and maintained with respect to each such Corporation Database.
(d) Each of Sellers is in material compliance with any Contracts related Corporation and its Subsidiaries have valid and subsisting contractual rights and consents to Intellectual Property used Process or to have Processed all Corporation Licensed Data howsoever obtained or collected by or for Corporation and its Subsidiaries in the operation manner that it is Processed by or for Corporation and its Subsidiaries. Corporation and its Subsidiaries have all rights, and all permissions, consents, licenses or authorizations required under applicable Laws (including Privacy Laws) and relevant Contracts (including Corporation Data Agreements), to use, retain, produce copies, prepare derivative works, disclose, combine with other data, and grant third parties rights, as applicable, to each of the IT Systems.
(e) To the Knowledge of Sellers, the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software).
(f) Sellers have adopted, maintained and enforced commercially reasonable policies regarding use and integrity of the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs of the Business Corporation Licensed Data as currently operated, including as data transport, data storage, capacity and scalability; and the IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the operation of the Business business as currently operated.
(g) The IT Systems presently conducted. Corporation and its Subsidiaries have been reasonably maintained and supported, and, if and to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on compliance with all payment obligations thereunderContracts pursuant to which Corporation Processes or has Processed Corporation Licensed Data, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreementwill not conflict with, or result in any violation or breach of, or default under, any such Contract. Section 29(d) of the Corporation Disclosure Letter identifies each Contract governing any Corporation Licensed Data to which Corporation or any of its Subsidiaries is a party or is bound.
(he) In Corporation or Subsidiaries are the past three (3) yearsowner of all right, title and interest in and to each element of Corporation Data that: (i) there has been no failure, breakdown is used or continued substandard performance of any IT Systems held for use in the business that has caused a material disruption is not Personal Data or interruption in Corporation Licensed Data; or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) is Corporation Owned Data. Corporation and its Subsidiaries have the IT Systems right to Process all Corporation Owned Data without obtaining any permission or authorization of any Person. Other than as set forth on Section 29(e) of Schedule C, Corporation and its Subsidiaries have not been subject entered into any Contract governing any Corporation Owned Data or to which Corporation or any Security Incidentof its Subsidiaries is a party or bound by, and (iii) no Seller has received any notice alleging except the occurrence standard terms of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incident.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct use entered into by users of the Business in a commercially reasonable attempt Products (copies of which have been provided to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access theretoPurchaser).
Appears in 2 contracts
Samples: Arrangement Agreement (Shockwave Medical, Inc.), Arrangement Agreement (Neovasc Inc)
Information Technology. (a) Section 3.8(a) of The information technology systems used by the Seller Disclosure Schedule contains Acquired Companies (i) a list of all leases relating to the IT Systems and (ii) a listing of the “IT Systems, the name of the facility and location where the IT Systems used in connection with the Business are operated.
(b”) Sellers are the exclusive owners of, or have contractual rights to use the IT Systems free from Liens, except for Permitted Liens, and no Seller has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating to the IT Systems.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation of the Business as currently conducted.
(d) Each of Sellers is in material compliance with any Contracts related to Intellectual Property used in the operation of the IT Systems.
(e) To the Knowledge of Sellers, the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software).
(f) Sellers have adopted, maintained and enforced commercially reasonable policies regarding use and integrity of the IT Systems by its employees and contractors. The IT Systems are sufficient in all material respects for the needs of the Business business of the Acquired Companies as currently operatedconducted, including as data transportto capacity, data storage, capacity scalability and scalability; ability to process current and currently anticipated peak volumes in a timely manner. The Acquired Companies’ IT Systems and the Acquired Companies’ related procedures and practices are designed, implemented, operated and maintained in all material respects in accordance with commercially reasonable practices for entities operating businesses similar to the business of the Acquired Companies, including with respect to redundancy, reliability, scalability and security. Without limiting the foregoing, (i) the Acquired Companies have taken reasonable steps and implemented reasonable procedures to ensure in all material respects that the Acquired Companies’ IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the operation of the Business as currently operated.
(g) The IT Systems have been reasonably maintained and supported, and, if and to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunderfree from Malicious Code, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In the past three (3) years: (i) there has been no failure, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems Acquired Companies have not been subject to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incident.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and effect disaster recovery plans, procedures and facilities that reasonably ensure for their business and have taken reasonable steps to safeguard the continuing availability security and the integrity of their IT Systems in all material respects. The Acquired Companies have implemented reasonable safeguards, including as may be defined by Applicable Law (including Privacy, Security and Consumer Protection Laws), and administrative, physical and technical security measures appropriate to the Acquired Companies given the sensitivity of the functionalities provided Personal Data, to protect Personal Data in the Acquired Companies’ possession or control from unauthorized access by third Persons in all material respects, including the Acquired Companies’ employees and contractors.
(b) There has been no unresolved failure or other substandard performance of any IT Systems of the Acquired Companies which has caused any material disruption to the business of the Acquired Companies. The Acquired Companies have not suffered any data loss, business interruption, or other harm as a result of, any Malicious Code intentionally designed to permit (i) unauthorized access to a computer or network, (ii) unauthorized disablement or erasure of Software, hardware or data, or (iii) any other similar type of unauthorized activities. Since January 1, 2016, there have not been any actual or suspected illegal or unauthorized intrusions or breaches of the security of any of the IT Systems and material data and continued services to the customers or any actual or suspected illegal or unauthorized access, disclosure, use, destruction or alteration of any Personal Data that was collected by or on behalf of the Business in accordance with its customer Contracts, Acquired Companies and is in the event possession or control of any malfunctionthe Acquired Companies or the Acquired Companies’ vendors, Security Incident marketing affiliates or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access theretobusiness partners.
Appears in 1 contract
Information Technology. (a) Section 3.8(a) 4.34 of the Seller Disclosure Schedule contains (i) Letter sets out a list of all leases relating to the IT Systems and (ii) a listing of the IT Systemsmaterial Information Technology owned, the name of the facility and location where the IT Systems licensed, used or held for use primarily in connection with the Purchased Business are operated(the “Purchased Business IT”) and all Contracts relating to maintenance and support, security, disaster recovery management and utilization of the Purchased Business IT.
(b) Sellers None of the Purchased Business IT depends upon any service, technology or data of any third party (other than the Internet and hosted systems that are the exclusive owners ofsubject of Contracts which have been identified in Section 4.34 of the Seller Disclosure Letter and included in the Data Room) and such Purchased Business IT, or have contractual rights together with the services that are expressly agreed to use the IT Systems free from Liens, except for Permitted Liens, and no Seller has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating be provided pursuant to the Transition Services Agreement, is sufficient for the conduct of the Purchased Business in the Ordinary Course after Closing. The Seller uses reasonable means, consistent with acceptable and prudent industry practice, to protect the security and integrity of all such Purchased Business IT Systemsincluding having in place disaster recovery plans for its computer systems and the data contained therein.
(c) Sellers own or have valid Contracts Except as set out in place with all applicable third parties Section 4.34 of the Seller Disclosure Letter, the Purchased Business IT can be assigned and transferred to use the IT Systems Purchaser and used by the Purchaser in the operation of the Purchased Business as currently conductedwithout any requirement for Consent.
(d) Each None of Sellers is the Purchased Business IT:
(i) contains any bug, defect or error that materially and adversely affects the use, functionality or performance of such Purchased Business IT or any product or system containing or used in material compliance conjunction with such Purchased Business IT, or
(ii) fails to comply with any Contracts related applicable warranty or other contractual commitment relating to Intellectual Property the use, functionality or performance of such Purchased Business IT or any product or system containing or used in the operation of the IT Systemsconjunction with such Purchased Business IT.
(e) To No Purchased Business IT contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware” or “adware” (as such terms are commonly understood in the Knowledge software industry) or any other code designed or intended to have or capable of Sellersperforming or facilitating, any of the IT Systems following functions:
(i) 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 any information or data stored or accessed on same, or
(ii) compromising the privacy or data security of a user or damaging or destroying or compromising the security, integrity, or availability of any data or file without the consent of the user who is authorized to access such data or file (collectively, “Malicious Code”). The Seller has implemented and Software maintains industry standard measures designed to prevent the introduction of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that Malicious Code into the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software)Purchased Business IT.
(f) Sellers have adopted, maintained The use of any Purchased Business IT by the Seller and enforced commercially reasonable policies regarding use and integrity its transfer to the Purchaser does not exceed the scope of the IT Systems by its employees and contractors. The IT Systems are sufficient for rights granted to the needs of the Business as currently operatedSeller with respect thereto, including as data transportany applicable limitation upon the usage, data storagetype or number of licences, capacity and scalability; and the IT Systems are in good working condition to perform material computingusers, information technology and data processing operations necessary for the operation of the Business as currently operatedhardware, time, services or systems.
(g) The IT Systems Seller has not experienced any disruption, interruption, outage, bugs or breakdowns that have been reasonably maintained and supported, and, if and to caused the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In the past three (3) years: (i) there has been no failure, breakdown or continued substandard performance of any IT Systems that has caused a material substantial disruption or interruption in or to the operations use of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security IncidentPurchased Business IT.
(ih) Sellers have The Seller has taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, industry practice to manage identified software vulnerabilities and to take appropriate rectification steps. The Purchased Business IT has been satisfactorily maintained and supported. The Company has implemented and has processes and policies in place to implement regular security patches or security upgrades that are generally available for all Software and which are commercially reasonable to implement. All Purchased Business IT has been properly maintained by technically competent personnel in accordance in all material respects with standards set by the manufacturers and services providers or otherwise in accordance with standards prudent in the event industry to ensure proper operation of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access theretoInformation Technology.
Appears in 1 contract
Information Technology. (a) Section 3.8(a) of the Seller Disclosure Schedule contains (i) a list of all leases relating to the IT Systems and (ii) a listing of the IT Systems, the name of the facility and location where the IT Systems used in connection with the Business are operated.
(b) Sellers are the exclusive owners of, or have contractual rights to use the IT Systems free from Liens, except for Permitted Liens, and no Seller The Company has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating to the IT Systems.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation of the Business as currently conducted.
(d) Each of Sellers is in material compliance with any Contracts related to Intellectual Property used in the operation of the IT Systems.
(e) To the Knowledge of Sellers, the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure the systems, devices, networks, and equipment, including hardware, computers, servers, storage devices, workstations, peripherals, routers, hubs, switches, sensors, and other systems, devices or equipment, and all Software operating on or in connection with such systems, devices, networks or equipment, that are used or held for use in the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software).
(f) Sellers have adopted, maintained and enforced commercially reasonable policies regarding use and integrity conduct of the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs business of the Business as currently operated, including as data transport, data storage, capacity and scalability; and Company (the IT Systems “Company Information Systems”) are in good working condition to perform material computing, information technology and data processing operations necessary reasonably adequate for the operation of the Business businesses of the Company as currently operated.
(g) The IT Systems have been reasonably maintained conducted[, and supported, and, if and the Company has purchased a sufficient number of license seats for all Software currently used by or on behalf of the Company. With respect to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Company Information Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In the past three (3) years: (i) there the Company has been no failure, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incident.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard ensure, or, in the IT case of Company Information Systems not controlled or configured by the Company, has contractually required its vendor or contractor to implement commercially reasonable procedures to ensure, that such Company Information Systems do not include any Malicious Code, which procedures include the use of antivirus software to protect such Company Information Systems from becoming infected by any Malicious Code; (ii) except as set forth on Schedule 3.20(a), to the Company’s Knowledge, there has not been any material malfunction or any material unplanned downtime or service interruption in or affecting any Company Information System; (iii) the Company has taken commercially reasonable steps and reasonably protect against implemented commercially reasonable procedures to manage its licenses to all Software that is a component of the risk Company Information Systems controlled or configured by the Company and ensure compliance with the terms of unauthorized such licenses and have fully complied with all vendor-initiated audits of usage of such Software; and (iv) the Company has taken commercially reasonable steps and implemented commercially reasonable procedures to mitigate risks that the Company Information Systems will be used or accessed by persons other than Company employees, contractors or other authorized personnel or other than in a manner in which such personnel are authorized to use or access theretothe Company Information Systems. The Company has taken commercially reasonable measures to provide for system redundancy and back-up of data and material information in a commercially reasonable manner and has exerted commercially reasonable efforts to avoid disruption or interruption to the business of the Company.
(b) The Company is not obligated to support or maintain any of the Company Software except pursuant to Contracts with customers in the ordinary course of business or as set forth in Schedule 3.20(b).
Appears in 1 contract
Information Technology. (a) Section 3.8(a) All of the Seller Disclosure Schedule contains (i) a list of all leases relating to the IT Systems and (ii) are owned by, or validly licensed, leased or supplied under IT Contracts to, a listing of the IT Systems, the name of the facility and location where the IT Systems used in connection with the Business are operatedTarget Company.
(b) Sellers All of the IT Systems are maintained and supported by a Target Company or by a third party under an IT Contract.
(c) All material IT Contracts, as of the exclusive owners ofdate hereof, are listed in Exhibit Part B, 19(c).
(d) The IT Contracts are in force. So far as the Seller is aware, none of the parties to them is in default and there are no grounds on which they might be terminated. No disputes have arisen or have contractual rights are foreseeable in connection with them. There are no material service delivery issues existing or likely. There is no reason to believe that the IT Contracts will not be renewed when they expire on the same or substantially similar terms.
(e) There are no circumstances in which the ownership, benefit or right to use the IT Systems free from Liensmight be lost, except for Permitted Liensor rendered liable to termination, and no Seller has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating to the IT Systems.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation by virtue of the Business as currently conducted.
(d) Each of Sellers is in material compliance with any Contracts related to Intellectual Property used in the operation acquisition of the IT Systems.
(e) To Shares or the Knowledge performance of Sellers, this Agreement or any of the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software)other Transaction Documents.
(f) Sellers No Target Company has authorised a third party to modify, reverse engineer or create derivative works of software or systems included in the IT Systems or licensed by a Target Company to third parties.
(g) In the last 18 months, the IT Systems have adoptednot failed to any material extent and the data that they process has not been corrupted or compromised. The Target Companies have implemented measures in accordance with best industry practice designed to prevent the IT Systems from being affected by viruses, maintained bugs or other things that might distort their proper functioning, permit unauthorised access or disable them without the consent of the user.
(h) The Target Companies have in place adequately documented policies and enforced commercially reasonable policies regarding use procedures, which accord with good industry practice, for recording and storing back-up, security and archival copies of all data held or processed on the IT Systems on a regular basis in line with good industry practice, which are stored off the Property in a secure environment and which can be retrieved and loaded onto the IT Systems so as to restore the data of which they are in copy.
(i) The Target Companies have, in accordance with best industry practice, taken precautions to preserve the availability, security and integrity of the IT Systems by its employees and contractorsthe data and information stored on the IT Systems. The IT Systems are sufficient for the needs of the Business as currently operated, including as data transport, data storage, capacity Target Companies have adopted a BC and scalability; and the IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the operation of the Business as currently operatedDR Plan.
(gj) The IT Systems have been reasonably maintained and supportedthat are (i) owned by the Target Companies; (ii) licensed, and, if and leased or supplied to the extent a Seller is a party Target Companies under the IT Contracts; or (iii) acquired by or made available to maintenance the Target Companies or support Contracts the Purchaser under this Agreement and the Transaction Documents together comprise all the IT Systems that are required to carry on the Target Companies’ businesses after Closing as they were carried on at the Closing Date and in respect the last 12 months preceding the Closing Date.
(k) There are no plans to replace or upgrade any material part of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none Systems within the period of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of 12 months from the consummation of the transactions contemplated by this AgreementClosing Date.
(h) In the past three (3) years: (i) there has been no failure, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incident.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access thereto.
Appears in 1 contract
Samples: Share Purchase Agreement (Ca, Inc.)
Information Technology. (a) Section 3.8(aSchedule 4.28(a) of the Seller Company Disclosure Schedule contains Schedules sets forth a true and correct list of all (i) a list of all leases relating to the IT Systems material Software, and (ii) a listing of material licenses, leases, development agreements, services or maintenance agreements, in each case, used, held for use or relating exclusively to the Company IT Systems, other than “off-the name of shelf software” available from third party suppliers on arm’s length commercial terms. The Company and its Subsidiaries own or have rights to use (by license or lease) the facility and location where the Company IT Systems used or held for use by the Company and its Subsidiaries in connection with the Business operation of the Business, and the Company IT Systems are operatedsufficient, including bandwidth, scalability and information storage and processing, for the current need of the Business.
(b) Sellers are Each of the exclusive owners of, Company and its Subsidiaries has full and complete copies of all source code for all software which it owns. None of the material software licensed to the Company or have contractual rights to use its Subsidiaries will be affected or terminated by any Change of Control of any of the IT Systems free from Liens, except for Permitted LiensCompany and its Subsidiaries, and no Seller has received written notice from a third party alleging that such Seller each of the Company and its Subsidiaries is currently in default under any license or lease relating to full compliance with the IT Systemsterms of all source code escrow agreements.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the The Company IT Systems are adequate for, and 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 its Subsidiaries as currently conducted. The Company IT Systems have not malfunctioned or failed at any time in the last five (5) years in a manner that resulted in material disruptions to the operation of the Business and that were not remedied or remediated by the Company or a Subsidiary of the Company, as currently conductedapplicable. The Company and each of its Subsidiaries maintains commercially reasonable controls, policies, procedures, and safeguards designed to maintain and protect their material confidential information and the integrity, continuous operation, and security of all Company IT Systems and all Personal Information, and confidential information processed and stored thereon.
(d) Each The Company and its Subsidiaries have taken commercially reasonable efforts designed to maintain, upgrade and update the Company IT Systems. The Company and its Subsidiaries have taken commercially reasonable actions in accordance with good industry practice to ensure the protection, integrity and security of Sellers is in material compliance with the Company IT Systems, and all information stored, processed or transmitted thereby, from any Contracts related to Intellectual Property used unauthorized interruption, access, use or modification by third parties, including by employing commercially reasonable technical measures prudent in the operation industry in which the Company operates (which may include firewalls, virus and other malicious or disabling code detection and removal programs, and back-up, disaster recovery and business continuity programs). In the last five (5) years, (i) to the Knowledge of the Company, there have been no unauthorized intrusions or breaches of security with respect to the Company IT Systems, and (ii) there have been no material unplanned downtime or service interruption with respect to the Company IT Systems. The consummation of the transactions contemplated under this Agreement will not materially impair the rights of the Company or any of its Subsidiaries to use the Company IT Systems.
(e) To the Knowledge of Sellers, the The Company IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps third party Software or equipment which is not available from third party suppliers on arm’s length commercial terms and implemented commercially reasonable safeguards contain sufficient user information to ensure that enable reasonably skilled personnel in the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software).
(f) Sellers have adopted, maintained and enforced commercially reasonable policies regarding field to use and integrity of operate them without the IT Systems by its employees and contractors. The IT Systems are sufficient need for the needs of the Business as currently operated, including as data transport, data storage, capacity and scalability; and the IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the operation of the Business as currently operated.
(g) The IT Systems have been reasonably maintained and supported, and, if and to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In the past three (3) years: (i) there has been no failure, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incidentfurther assistance. There are is no facts reason to believe that any rights to use such third party Software or circumstances that would require any Seller to give notice to any customers equipment will not be renewed when they expire on the same or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incidentsubstantially similar terms.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access thereto.
Appears in 1 contract
Information Technology. 8.1 IT systems.
(a) Section 3.8(a) All of the Seller Disclosure Schedule contains (i) a list of all leases relating to the IT Systems and used, owned, leased or licensed by the Target Group Companies in the course of their businesses (ii) a listing of the “Business IT Systems”) are legally and beneficially owned by, the name of the facility and location where the IT Systems used in connection with the Business are operatedor validly licensed, leased or supplied by third parties to, a Target Group Company.
(b) Sellers are the exclusive owners of, or have contractual rights to use The Business IT Systems comprise all of the IT Systems free from Liens, except for Permitted Liens, that are required to carry on the Target Group Companies’ businesses as they were carried on at the date of this Agreement and no Seller has received written notice from a third party alleging that such Seller is currently in default under any license or lease relating the 12 months prior to the IT Systemsdate of this Agreement.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in the operation All of the Business as currently conductedIT Systems are maintained and supported by a Target Group Company or by a third party under a valid agreement.
(d) Each Copies of Sellers is in material compliance all contracts with any Contracts related third parties relating to Intellectual Property used in the operation license, lease, supply, maintenance or support of the Business IT SystemsSystems have been Disclosed.
(e) To So far as the Knowledge of SellersSellers are aware, there are no circumstances in which the ownership, benefit or right to use the Business IT Systems and Software might be lost, or rendered liable to termination, by virtue of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software)entry into or performance of any of the Transaction Documents.
(f) Sellers have adopted, maintained The Business IT Systems operate and enforced commercially reasonable policies regarding use and integrity perform in accordance with their documentation in all material respects as currently required by the business of the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs of the Business as currently operated, including as data transport, data storage, capacity and scalability; and the IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the operation of the Business as currently operatedTarget Group Companies.
(g) The Target Group Companies have taken commercially reasonable actions designed to protect the integrity and security of the Business IT Systems have within its operational control and the information stored therein, processed thereon or transmitted therefrom from unauthorized use, access, or modification by third parties, and there has been reasonably maintained and supportedno such unauthorized use, and, if and to the extent a Seller is a party to maintenance access or support Contracts in respect modification of the such Business IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In The Target Company owns or has a valid right to access and use the past three (3) years: (i) there has been no failure, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption are used in or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incident.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of its business as presently conducted, including valid licenses, subscriptions or other rights to use all software present on the Business computers and other software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees or contractors for their use in a connection with its business. The Target Group Companies have implemented commercially reasonable attempt to avoid disruption tobackup, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) security and disaster recovery plans, procedures technology and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access theretoprocedures.
Appears in 1 contract
Information Technology. (a) Section 3.8(a3.16(a) of the Seller Disclosure Schedule contains (i) sets out a true, correct and complete list of all leases relating to the IT Systems and (ii) a listing of the IT Systemsmaterial Information Technology owned, the name of the facility and location where the IT Systems licensed, used or held for use in connection with the Business are operated(other than with respect to personal computers and printers) and all Material Contracts in effect as of the date hereof relating in any material respect to the maintenance and support, security, disaster recovery management and utilization of such Information Technology.
(b) Sellers are the exclusive owners ofown, lease, licenses or have has other contractual rights to use the IT Systems free from Liens(pursuant to valid and enforceable lease, except for Permitted Lienslicense or other contractual agreements) all Information Technology, networking systems, telecommunication systems, and no documentation (including, but not limited to, a written disaster recovery and business continuity plan and procedures) relating to any of the foregoing, that are used in or necessary for the operations of the Business as currently conducted (the “Business IT”). Seller will be, at Closing, in compliance in all material respects with its material license agreements for all Business IT licensed or leased by Seller and Seller has not received written notice from a third party alleging vendor or licensor that such Seller is currently in default under violation of any such license or lease relating to the IT Systems.
(c) Sellers own or have valid Contracts in place with all applicable third parties to use the IT Systems in lease. Seller maintains comprehensive and clear documentation regarding Information Technology, their methods of operation, and their support and maintenance. The Information Technology is adequate for the operation of the Business as currently conducted. Each system comprising the Information Technology is adequate for its intended functions, operations and purposes in all material respects, and there has been no material malfunction of any Information Technology that has not been resolved and corrected. Seller has taken reasonable precautions in accordance with industry practice to preserve the availability, security and integrity of the Information Technology and the data and information stored on the Information Technology, and, to the Knowledge of Seller, the Information Technology has not been compromised or breached. Seller has disaster recovery facilities in place for its primary operations Software applications and either disaster recovery or failover facilities in place for the applications needed to process customer orders that are appropriate, in accordance with industry practice, to minimize the disruption of the Business in the event of any failure of all or part of the Information Technology. Seller has regularly tested such plans and facilities, and has written disaster recovery procedures in place.
(c) Since the Balance Sheet Date, no notice of a material defect or default has been sent or received by Sellers, in respect of any license or lease under which the Sellers received material Information Technology, that remains unresolved. The use of any Information Technology by Sellers does not, in any material respect, exceed the scope of the rights granted to the Sellers with respect thereto, including any applicable limitation upon usage, type or number of licenses, users, hardware, time, service or systems.
(d) Each of the domain names set forth in Schedule 2.1(a)(ii) of the Disclosure Schedule is validly registered to one of the Sellers and there are no other domain names which are or have been used in connection with the Business. Each such domain name is free and clear of all Encumbrances and the registration of each such domain name is in full force and effect and in material compliance with any Contracts related to Intellectual Property used in the operation all applicable domain name registration requirements. None of the IT Systems.
(e) To registrations or uses of the Knowledge of Sellers, domain names have been materially disturbed or placed “on hold” and the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software).
(f) Sellers have adopted, maintained and enforced commercially reasonable policies regarding use and integrity of the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs of the Business as currently operated, including as data transport, data storage, capacity and scalability; and the IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the operation of the Business as currently operated.
(g) The IT Systems have been reasonably maintained and supported, and, if and to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunder, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In the past three (3) years: (i) there has been no failure, breakdown or continued substandard performance not received notice of any IT Systems that has caused a material disruption or interruption in or claim asserted against Sellers adverse to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject its rights to any Security Incident, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security Incidentdomain names.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Intercloud Systems, Inc.)
Information Technology. (a) Section 3.8(a) of the Seller Disclosure Schedule contains 13.1 Except for those agreements relating to (i) a list of all leases relating computer systems (hardware and software) provided by the Seller and its Affiliates to the IT Systems Transferred Companies pursuant to the TSA and (ii) a listing of the IT SystemsExcluded Services (as defined in the TSA), the name of Data Room contains all material agreements relating to all computer systems (hardware and software) which are owned by any Transferred Company or are required for any Transferred Company to carry on its Business (“Business IT”, and such agreements set forth in the facility Data Room, the “Business IT Agreements”). The Business IT Agreements are valid and location where the IT Systems used in connection with the Business are operated.
(b) Sellers are the exclusive owners of, or have contractual rights to use the IT Systems free from Liens, except for Permitted Liensbinding, and no act or omission has occurred which would constitute a breach of any such Business IT Agreements. The Seller has received written notice from a third party alleging no reason to believe that such Seller is currently in default under any license Business IT Agreement will not be renewed on the same or lease relating to substantially the IT Systemssame terms when they expire.
(c) Sellers own or have valid Contracts in place with all applicable third parties to 13.2 All use the IT Systems in the operation and distribution of the Business as currently conducted.
(d) Each of Sellers software and open-source materials by any Transferred Company is in material compliance with all open source licenses applicable thereto. No Transferred Company has used any Contracts related copyleft materials in a manner that requires any software or products, or any portion thereof, or any Business Registered IP, to Intellectual Property used in the operation be subject to copyleft licenses or other restrictions or obligations (including by way of the IT Systemsdisclosure of any Transferred Company’s source code pursuant to a source code escrow agreement or otherwise) that would have an adverse effect on the course of the business.
13.3 In the 24 months prior to the date of this Agreement, there have been no performance reductions, outages, breakdowns, security breaches or intrusions of or into any Business IT, or losses of data, including Personal Information which have had (eor are having) To a material adverse effect on the Knowledge business of Sellersthe Transferred Companies. Each Transferred Company takes and has taken reasonable measures consistent with industry best practices and cybersecurity laws to protect and maintain the performance, the IT Systems and Software of Sellers do not contain Harmful Code. Sellers have taken commercially reasonable steps and implemented commercially reasonable safeguards to ensure that the IT Systems and Software are free from Harmful Code (including preventative steps and safeguards for such IT Systems and Software).
(f) Sellers have adoptedsecurity, maintained and enforced commercially reasonable policies regarding use operation, and integrity of the IT Systems by its employees and contractors. The IT Systems are sufficient for the needs of the Business as currently operatedIT, including as data transportto secure Business IT from unauthorized access or use by any third party, data storageand to ensure the continued, capacity uninterrupted, and scalability; and the IT Systems are in good working condition to perform material computing, information technology and data processing operations necessary for the error-free operation of the Business as currently operated.
(g) The IT Systems have been reasonably maintained IT. Each Transferred Company has implemented disaster recovery and supported, and, if and to the extent a Seller is a party to maintenance or support Contracts in respect of the IT Systems, neither party is in material breach thereof, Sellers are current on all payment obligations thereunderbusiness continuity plans, and none of such Contracts that are material to Sellers will be terminable or result in a material change therein as a result of the consummation of the transactions contemplated by this Agreement.
(h) In the past three (3) years: (i) there has been no failurebackup, breakdown or continued substandard performance of any IT Systems that has caused a material disruption or interruption in or to the operations of Sellers or a material breach of any Contract by a Seller, (ii) the IT Systems have not been subject to any Security Incidentarchiving, and (iii) no Seller has received any notice alleging the occurrence of a Security Incident. There are no facts or circumstances that would require any Seller virus and malicious device scanning and protection measures with respect to give notice to any customers or other similarly-situated Persons of any Security Incident pursuant to applicable Laws requiring notice of such a Security IncidentBusiness IT, consistent in all material respects with industry best practices and cybersecurity laws.
(i) Sellers have taken commercially reasonable steps to provide for the remote-site back-up of data and information material to the conduct of the Business in a commercially reasonable attempt to avoid disruption to, or interruption in, the conduct of the Business or loss of material data. Sellers have back-up systems (including electrical power, telecommunications, heating, ventilating, air conditioning and water systems) and disaster recovery plans, procedures and facilities that reasonably ensure the continuing availability of the functionalities provided by the IT Systems and material data and continued services to the customers of the Business in accordance with its customer Contracts, in the event of any malfunction, Security Incident or other form of disaster affecting the IT Systems. Sellers have taken commercially reasonable steps and implemented commercially reasonable procedures appropriate to safeguard the IT Systems and reasonably protect against the risk of unauthorized access thereto.
Appears in 1 contract
