Common use of Intellectual Property and Computer Software Clause in Contracts

Intellectual Property and Computer Software. (a) Schedule 2.16(a) sets forth a true and complete list of (i) registered Intellectual Property owned by the Company or any of its Subsidiaries (collectively, the “Proprietary Intellectual Property”) that is material to the Ordinary Course of Business of the Company and its Subsidiaries as currently conducted, and (ii) all Intellectual Property used by the Company or any of its Subsidiaries that is used pursuant to a license or other right granted by a third party under which the Company or any of its Subsidiaries is obligated to pay amounts in excess of $100,000 annually (collectively, the “Licensed Intellectual Property” and, together with the Proprietary Intellectual Property, the “Intellectual Property Rights”). (b) The Assets of the Company and its Subsidiaries include all Intellectual Property that are material to the conduct of the Business in the Ordinary Course of Business as currently conducted, and the Company and its Subsidiaries own, or have the right to use, all Intellectual Property necessary to operate their Businesses as presently conducted, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (c) No charges, complaints, claims or demands are pending or, to the knowledge of the Company, threatened against, the Company or any of its Subsidiaries by any Person with respect to (i) the use of any Intellectual Property, including any claim that the Company or any of its Subsidiaries must license or refrain from using any Intellectual Property, or (ii) challenging or questioning the validity or effectiveness of any license or agreement relating to the same, that, in either case, would be reasonably likely, individually or in the aggregate, to result in a Material Adverse Effect, and the current use by the Company and its Subsidiaries of the Intellectual Property Rights does not infringe, misappropriate or violate the rights of any third party. (d) Schedule 2.16(d) sets forth a true and complete list of all jurisdictions in which the Company and its Subsidiaries are operating under a trade name and each jurisdiction in which any such trade name is registered. (e) The Company and its Subsidiaries have paid or will pay all maintenance and renewal fees and annuity payments, including any late payment penalties, required to keep Proprietary Intellectual Property registrations and filings in full force and effect for at least sixty (60) days after the Closing Date. Neither the Company nor any of its Subsidiaries has granted any licenses or security interests in Proprietary Intellectual Property to third parties and none shall exist at Closing. (f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in data and information (including trade secrets) of the Company and its Subsidiaries valuable to the operation of the Business and not generally known to the public or competitors and in third party trade secret and confidential information used by the Company and its Subsidiaries. The Company and its Subsidiaries are in compliance with all confidential disclosure agreements with third parties, and, to the Company’s knowledge, there has not been any theft, infringement, misappropriation or other violation of the Intellectual Property Rights by any Person, except to the extent any such infringement or violation would not reasonably be expected to result in a Material Adverse Effect. (g) Schedule 2.7(a) sets forth a true and complete list of all computer software and software services used in connection with the Business as it is currently conducted that is licensed to the Company or any of its Subsidiaries under which the Company or any of its Subsidiaries is obligated to pay amounts in excess of $100,000 annually (the “Licensed Software”). Schedule 2.7(a) sets forth a true and complete list of all licenses and agreements (excluding off-the-shelf or prepackaged software license agreements) pursuant to which the Company or any of its Subsidiaries is granted the right to use the Licensed Software (the “Software Contracts”). The Company and its Subsidiaries have the right to use all Licensed Software. To the knowledge of the Company, (i) the use of Licensed Software by the Company and its Subsidiaries does not breach any term of any license or other contract between the Company or any of its Subsidiaries and any third party and (ii) the Company and its Subsidiaries are in compliance with the terms and conditions of all Software Contracts, except to the extent any such breach or noncompliance would not reasonably be expected to result in a Material Adverse Effect.

Intellectual Property and Computer Software. (a) Schedule 2.16(a) sets forth a true The execution and complete list delivery of this Agreement and the consummation of the transactions contemplated by this Agreement (i) registered will not alter, restrict, encumber (including by the creation of any Lien), impair, or extinguish any Intellectual Property Rights owned or otherwise held by the Company or any of its Subsidiaries, and (ii) will not result in (A) the Company or its Subsidiaries granting to, or being obliged to grant to, any Person any additional or new rights or licenses to any Company IP, including any Company Software Products, under any Company IP Agreement, or (B) the termination or cancellation of any Company IP Agreement by the other party thereto. (b) There are no legal disputes, claims, actions or proceedings, threatened or pending, and neither the Company nor any of its Subsidiaries has received any notice of any of the foregoing (including any unsolicited offers to license) (i) alleging infringement, dilution, misappropriation, violation or any other conflict of or with any Intellectual Property Rights of another Person by the Company or any of its Subsidiaries, any of their respective past or present Company Software Products or services, or the operation of each of their respective business, or (ii) challenging the scope, ownership, use, validity, or enforceability of the Company IP. Neither the Company nor any of its Subsidiaries has requested or received any opinion of counsel related to any of the foregoing. None of the Company or its Subsidiaries, the respective past and present Company Software Products and services, and the operation of each of their businesses, infringes, dilutes, misappropriates, violates or otherwise conflicts with, or has infringed, diluted, misappropriated, violated or otherwise conflicted with, any Intellectual Property Rights of any Person. To the Knowledge of the Company, no third parties are infringing or violating or have infringed or violated any Company IP and neither the Company nor any of its Subsidiaries has received any notice of any such infringement or violation by a third party or has made any claims or threats alleging any such infringement or violation by a third party. Neither the Company nor any of its Subsidiaries has entered into any agreement to indemnify any Person against any charge of infringement of any Intellectual Property Rights, other than indemnification obligations arising in the ordinary course of business. (c) The Company or each of its Subsidiaries owns exclusively all right, title and interest in and to , free and clear of any Liens, or has the valid and enforceable right to use, all Intellectual Property Rights used in or necessary for the conduct of the business of the Company or its Subsidiaries as currently conducted. Except pursuant to a Company Outbound Agreement listed in Section 3.11(e)(ii)(B) or (C) of the Disclosure Letter or to a license agreement entered into in the ordinary course of business with a third party customer under the Company’s standard form agreement, no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or other products or services utilizing the Company IP. No Person that is a party to any Company Inbound Agreements or to any Company Outbound Agreements has any ownership rights or license rights to improvements, derivative works or customization works made by the Company or any of its Subsidiaries (collectivelyin or to any Intellectual Property Rights that are the subject of any such Company Inbound Agreements or Company Outbound Agreements. There are no restrictions on the disclosure, the “Proprietary Intellectual Property”) that is material to the Ordinary Course of Business use, license or transfer of the Company IP, including the Company Software Products. (d) Section 3.11(d) of the Disclosure Letter contains a true and complete list of all Registered IP and all Company Software Products as of the date hereof. The Company and its Subsidiaries as currently conductedhave taken all actions reasonably necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to office actions and disclosure of any required information, and all assignments (iiand licenses where required) of the Registered IP have been duly recorded with the appropriate Governmental Entities. To the Knowledge of the Company, the Company and each of its Subsidiaries have complied with all applicable notice and marking requirements for the Registered IP. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and, to the Knowledge of the Company, all Registered IP is valid and enforceable. No loss or expiration of the Registered IP is threatened, pending or reasonably foreseeable. (e) Section 3.11(e) of the Disclosure Letter contains a true and complete list of all licenses and other agreements or arrangements pursuant to which (i) the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights that are (A) sold, bundled or distributed with, or embedded, integrated or incorporated into, the Company Software Products, (B) used to host or provide the Company Software Products to the Company’s or its Subsidiaries’ customers on a software-as-a-service, web-based application, or other service basis, including any Software (or portions thereof) from which the Company Software Products inherit, link or otherwise call functionality (including libraries or other shared-source repositories), (C) used in the development of any Company Software Product, or (D) used or held for use by the Company or any of its Subsidiaries that is used pursuant to a license for any other purpose, including for the internal operations of the Company’s or other right granted any of its Subsidiaries’ respective business (excluding any generally available, off-the-shelf software programs licensed by a third party under which the Company or any of its Subsidiaries is obligated on standard terms that can be replaced without material cost or material interruption to pay amounts in excess of $100,000 annually the Company’s or any such Subsidiary’ business) (collectively, all licenses, agreements and arrangements listed in Section 3.11(e)(i) of the Disclosure Letter, the “Licensed Intellectual PropertyCompany Inbound Agreements”), or (ii) the Company or any of its Subsidiaries has granted to any Person (A) any licenses or rights under any Company IP (other than licenses granted in the ordinary course of business to individual schools and school districts, or to other third party customers of the Company Software Products under the Company’s or its Subsidiary’s, as applicable, standard agreement), (B) any rights to embed Company Software Products into the software products of any such Person, and (C) any rights to resell or otherwise distribute the Company Software Products (collectively, all licenses, agreements and arrangements listed in Section 3.11(e)(ii) of the Disclosure Letter, the “Company Outbound Agreements” and, together with the Proprietary Intellectual PropertyCompany Inbound Agreements, the “Intellectual Property RightsCompany IP Agreements”). (bf) Except as set forth in Section 3.11(f) of the Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed, delivered or otherwise provided the source code of any Company Software Product or any material part thereof to a third party, or has granted a contingent right to any third party to receive the source code of any Company Software Product or any material part thereof, whether, in each case, pursuant to an escrow arrangement or otherwise. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, result in a requirement that the source code of any Company Software Product be disclosed or delivered to any third party by the Company, any of its Subsidiaries or any person acting on their behalf. The Company or one of its Subsidiaries, as applicable, is in the possession of the source code and object code for all Software owned by the Company or such Subsidiary. (g) The Assets Company and its Subsidiaries have taken commercially reasonable steps to protect and preserve their rights in and the confidentiality of the Company IP and to protect and preserve any information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, and without limiting Section 3.11(f), the Company and its Subsidiaries include have not made any of their trade secrets or other confidential information or materials (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements, and in the case of the source code to Company Software Products solely pursuant to a written agreement set forth in Section 3.11(f) of the Disclosure Letter, or other legally binding obligations, requiring such Person to maintain the confidentiality of such information or materials. (h) The Company and its Subsidiaries have obtained from all Intellectual Property that are material Persons (including current or former directors, officers, employees, consultants and independent contractors) who have created any portion of, or otherwise who would have any rights in or to, any Company IP, including any Company Software Product, valid and enforceable assignments of any such rights to the conduct Company or any of its Subsidiaries, as applicable, pursuant to a written agreement. Neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP, including any Company Software Product. (i) No government entity funded or otherwise participated in the development of any Company IP, including any Company Software Products, and no governmental entity, university, college, other educational institution or research center has any claim or right of an ownership or financial nature in or to any Company IP, including any Company Software Products. (j) The material Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such material Company Software Products by or for the Company or its authorized users or to permit the unauthorized access of such material Company Software Products, or any other associated Software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses,” “worms,” “time bombs,” or “back doors”) that would cause or allow any of the Business foregoing. Each of the Company Software Products or services licensed or provided to third parties conforms to and performs in accordance with its user documentation and specifications in all material respects when properly installed (or accessed) and used. (k) Except as disclosed in Schedule 3.11(k), no Open Source Software is embedded, integrated or incorporated into, bundled or distributed with, linking with or to, or otherwise made available with, any Company Software Product, whether such Company Software Product is distributed or provided on a software-as-a-service, web-based application, or other service basis. (l) The Company and its Subsidiaries use commercially available antivirus software and use commercially reasonable efforts to protect the Ordinary Course Company Software Products and Software used internally by the Company or its Subsidiaries from becoming infected by viruses and other harmful code. (m) Neither the Company nor any of Business its Subsidiaries has received any unresolved, written claims from third parties, and, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries is aware of any unwritten claims from third parties, that any installation services, programming services, integration services, repair services, maintenance services, support services, training services, upgrade services or other services that have been performed by the Company or any Subsidiary for such third parties were in any material respect performed improperly or not in conformity with the terms and requirements of all applicable warranties and other contracts and with all applicable laws and regulations. (n) Neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any currently effective exclusive license with respect to, any Company IP, including any Company Software Products, to any other Person. (o) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted, and the Company and its Subsidiaries own, or have the right to use, purchased a sufficient number of license seats for all Intellectual Property necessary to operate their Businesses as presently conducted, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (c) No charges, complaints, claims or demands are pending or, to the knowledge of the Company, threatened against, the Company or any of its Subsidiaries by any Person with respect to (i) the use of any Intellectual Property, including any claim that the Company or any of its Subsidiaries must license or refrain from using any Intellectual Property, or (ii) challenging or questioning the validity or effectiveness of any license or agreement relating to the same, that, in either case, would be reasonably likely, individually or in the aggregate, to result in a Material Adverse Effect, and the current use Software used by the Company and its Subsidiaries in their respective businesses. With respect to the IT Assets: (i) there have been no successful unauthorized intrusions or breaches of the Intellectual Property Rights does security thereof; (ii) there has not infringebeen any material malfunction thereof that has not been remedied or replaced in all material respects, misappropriate or violate the rights of any third party. unplanned downtime or service interruption thereof; (diii) Schedule 2.16(d) sets forth a true and complete list of all jurisdictions in which the Company and its Subsidiaries have implemented or are operating under in the process of implementing (or in the exercise of reasonable business judgment have determined that implementation is not yet in the best interest of the Company and its Subsidiaries) in a trade name timely manner any and each jurisdiction in which any such trade name is registered. all security patches or security upgrades that are generally available therefor; and (eiv) The no Third Party providing services to the Company and its Subsidiaries have paid or will pay all maintenance and renewal fees and annuity payments, including has failed to meet any late payment penalties, required to keep Proprietary Intellectual Property registrations and filings in full force and effect for at least sixty (60) days after the Closing Dateservice obligations. Neither the Company nor any of its Subsidiaries has granted any licenses or security interests in Proprietary Intellectual Property to third parties and none shall exist at Closing. (f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in data and information (including trade secrets) Each of the Company and its Subsidiaries valuable to the operation of the Business have implemented reasonable backup and not generally known to the public or competitors and in third party trade secret and confidential information used by the Company and its Subsidiaries. The Company and its Subsidiaries are in compliance disaster recovery technology processes substantially consistent with all confidential disclosure agreements with third parties, and, to the Company’s knowledge, there has not been any theft, infringement, misappropriation or other violation of the Intellectual Property Rights by any Person, except to the extent any such infringement or violation would not reasonably be expected to result in a Material Adverse Effectindustry practices. (g) Schedule 2.7(a) sets forth a true and complete list of all computer software and software services used in connection with the Business as it is currently conducted that is licensed to the Company or any of its Subsidiaries under which the Company or any of its Subsidiaries is obligated to pay amounts in excess of $100,000 annually (the “Licensed Software”). Schedule 2.7(a) sets forth a true and complete list of all licenses and agreements (excluding off-the-shelf or prepackaged software license agreements) pursuant to which the Company or any of its Subsidiaries is granted the right to use the Licensed Software (the “Software Contracts”). The Company and its Subsidiaries have the right to use all Licensed Software. To the knowledge of the Company, (i) the use of Licensed Software by the Company and its Subsidiaries does not breach any term of any license or other contract between the Company or any of its Subsidiaries and any third party and (ii) the Company and its Subsidiaries are in compliance with the terms and conditions of all Software Contracts, except to the extent any such breach or noncompliance would not reasonably be expected to result in a Material Adverse Effect.

Intellectual Property and Computer Software. (a) Schedule 2.16(a) sets forth a true Each of Company and complete list each Subsidiary of (i) registered Company has all requisite right, title and interest in or valid and enforceable rights under contracts or licenses to use all Company Intellectual Property owned by the Company or any of its Subsidiaries (collectively, the “Proprietary Intellectual Property”) that is material to the Ordinary Course of Business of the Company and its Subsidiaries as currently conducted, and (ii) all Intellectual Property used by the Company or any of its Subsidiaries that is used pursuant to a license or other right granted by a third party under which the Company or any of its Subsidiaries is obligated to pay amounts in excess of $100,000 annually (collectively, the “Licensed Intellectual Property” and, together with the Proprietary Intellectual Property, the “Intellectual Property Rights”). (b) The Assets of the Company and its Subsidiaries include all Intellectual Property that are material necessary to the conduct of the Business in the Ordinary Course of Business as currently conducted, and the Company and its Subsidiaries own, or have the right to use, all Intellectual Property necessary to operate their Businesses respective business as presently conducted, except as would not reasonably be expected to have, individually or in . To the aggregate, a Material Adverse Effect. (c) No charges, complaints, claims or demands are pending or, to the knowledge of the Company, threatened against, the Company or any of its Subsidiaries by any Person with respect to (i) the use of extent any Intellectual PropertyProperty is the subject of a licensing agreement, including such licensing agreement and the parties thereto are described in Schedule 2.16. Except as described in Schedule 2.16, neither Company nor any claim Subsidiary of Company has received notice that the Company it is infringing upon or otherwise misappropriating any of its Subsidiaries must license or refrain from using any Intellectual Property, or (ii) challenging or questioning the validity or effectiveness of any license or agreement rights relating to the same, that, in either case, would be reasonably likely, individually Intellectual Property of any third party or in the aggregate, to result in a Material Adverse Effect, and the current use by the Company and its Subsidiaries of any application pending for the Intellectual Property Rights does not infringe, misappropriate or violate the rights of any third party. (d) Schedule 2.16(d) sets forth a true , and complete list of all jurisdictions in which the Company and its Subsidiaries are operating under a trade name and each jurisdiction in which any such trade name is registered. (e) The Company and its Subsidiaries have paid or will pay all maintenance and renewal fees and annuity payments, including any late payment penalties, required to keep Proprietary Intellectual Property registrations and filings in full force and effect for at least sixty (60) days after the Closing Date. Neither the neither Company nor any of its Subsidiaries has granted knowledge of any licenses basis for any such claim of infringement or security interests in Proprietary misappropriation. (b) Each item of Company Intellectual Property is owned exclusively by the Company or its Subsidiaries (excluding Intellectual Property licensed to Company or such Subsidiaries) and is free and clear of any Liens. Company (i) owns exclusively all trademarks, service marks and trade names used by Company in connection with the operation or conduct of the business of Company, including the sale of any products or technology or the provision of any services by Company and (ii) owns exclusively, and has good title to, all copyrighted works that are Company products or other works of authorship that Company otherwise purports to own; provided, however, that such works may incorporate copyrighted works or works of authorship, trademarks or trade names of third parties which are licensed to Company or are in the public domain. Each Subsidiary of Company (i) owns exclusively all trademarks, service marks and none shall exist at Closingtrade names used by such Subsidiary in connection with the operation or conduct of the business of such Subsidiary, including the sale of any products or technology or the provision of any services by such Subsidiary and (ii) owns exclusively, and has good title to, all copyrighted works that are such Subsidiary's products or other works of authorship that the Subsidiary otherwise purports to own; provided, however, that such works may incorporate copyrighted works or works of authorship, trademarks or trade names of third parties which are licensed to the Subsidiary or are in the public domain. (c) To the extent that any Company Intellectual Property has been developed or created by any party other than Company or a Subsidiary, Company has a written agreement with such party with respect thereto and Company or Subsidiary has either (i) obtained ownership of, and is the exclusive owner of, all such Intellectual Property by operation of law or by valid assignment of any such rights or (ii) has obtained a license under or to such Intellectual Property. (d) Company Intellectual Property constitutes all the Intellectual Property used in and/or necessary to the conduct of Company's and its Subsidiaries' business as it currently is conducted or as reasonably contemplated to be conducted, including, without limitation, the design, development, distribution, marketing, manufacture, use, import, license, and sale of the products, technology and services of Company (including products, technology or services currently under development). (e) To the knowledge of Seller and Company, no party is infringing or misappropriating any Company Intellectual Property. (f) The No Company and Intellectual Property or product, technology or service of Company or its Subsidiaries have taken reasonable steps is subject to protect their rights any Action that restricts, or that is reasonably expected to restrict in data and information (including trade secrets) any manner, the use, transfer or licensing of the any Company and Intellectual Property by Company or its Subsidiaries valuable to or that may affect the operation validity, use or enforceability of the Business and not generally known to the public or competitors and in third party trade secret and confidential information used by the such Company and its Subsidiaries. The Company and its Subsidiaries are in compliance with all confidential disclosure agreements with third parties, and, to the Company’s knowledge, there has not been any theft, infringement, misappropriation or other violation of the Intellectual Property Rights by any Person, except to the extent any such infringement or violation would not reasonably be expected to result in a Material Adverse EffectProperty. (g) Schedule 2.7(a) sets forth Company has taken all necessary and appropriate steps to protect and preserve ownership of Company Intellectual Property. Company has secured valid written assignments from all consultants and employees who contributed to the creation or development of Company Intellectual Property. In the event that the consultant is concurrently employed by Company and a true and complete list of all computer software and software services used in connection third party, Company has taken additional steps to ensure that any Company Intellectual Property developed by such a consultant does not belong to the third party or conflict with the Business as it is currently conducted third party's employment agreement. Such steps include, but are not limited to, ensuring that is licensed to the Company or any of its Subsidiaries under which the Company or any of its Subsidiaries is obligated to pay amounts in excess of $100,000 annually (the “Licensed Software”). Schedule 2.7(a) sets forth all research and development work performed by such a true consultant are performed only on Company's facilities and complete list of all licenses and agreements (excluding off-the-shelf or prepackaged software license agreements) pursuant to which the Company or any of its Subsidiaries is granted the right to use the Licensed Software (the “Software Contracts”). The Company and its Subsidiaries have the right to use all Licensed Software. To the knowledge of the only using Company, (i) the use of Licensed Software by the Company and its Subsidiaries does not breach any term of any license or other contract between the Company or any of its Subsidiaries and any third party and (ii) the Company and its Subsidiaries are in compliance with the terms and conditions of all Software Contracts, except to the extent any such breach or noncompliance would not reasonably be expected to result in a Material Adverse Effect's resources.