Intellectual Property and Data Privacy. (a) Section 3.19(a) of the Company Disclosure Letter sets forth a correct and complete list of all active registrations and pending applications for (i) copyrights, (ii) patents, (iii) trademarks, (iv) domain names and (v) social media handles, included in the Owned Company Intellectual Property. (b) The Company and the Company Subsidiaries exclusively own or have the right to use all Intellectual Property Rights that are used in the business of the Company and the Company Subsidiaries as currently conducted. None of the Owned Company Intellectual Property is subject to any (i) Liens, except for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights thereto. (c) The conduct of the business of the Company and the Company Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person except, in each case, for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries as currently conducted. (d) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries, since January 1, 2021, neither the Company nor any of the Company Subsidiaries is or has been the subject of any claim that is or has been asserted or threatened in writing to the Company or any of the Company Subsidiaries alleging the conduct of the business by the Company or any of the Company Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights of any other person. (e) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiaries. (f) Since January 1, 2021, (i) to the knowledge of the Company, no other person has infringed, misappropriated or otherwise violated any Intellectual Property Rights owned by or exclusively licensed to the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole. (g) The Company and each of the Company Subsidiaries has taken commercially reasonable steps to protect and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual Property. All current and former employees and contractors and any other person having access to Confidential Information, have executed and delivered to the Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, in violation of any terms or covenant of any such agreements. (h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conducted, (ii) operate in all material respects in accordance with their documentation, and (iii) to the knowledge of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions to protect the security, integrity, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems. (i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is not, as of the date hereof, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans. (j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual Property. None of the Company nor any of the Company Subsidiaries is a party to any contract with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property. (k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws. (l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”), except for any such Security Incident that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information against any Security Incident. (m) Since January 1, 2021, there have been no Proceedings, and no Proceedings are pending or, to the knowledge of the Company, threatened against the Company or Company Subsidiaries or the business relating to the Processing of Personal Information. To the knowledge of the Company, the consummation of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy Commitments.
Appears in 4 contracts
Samples: Merger Agreement (Pc Tel Inc), Merger Agreement (Pc Tel Inc), Merger Agreement (Pc Tel Inc)
Intellectual Property and Data Privacy. (a) Section 3.19(a4.20(a) of the Company Disclosure Letter Schedules sets forth a true, correct and complete list of all active patent, trademark and copyright registrations and pending applications for (i) copyrights, (ii) patents, (iii) trademarks, (iv) domain names and (v) social media handles, included in the Owned registration that are Company Intellectual Property.
(b) The Company and the Company Subsidiaries exclusively own or have the right to use all Intellectual Property Rights that are used in the business of the Company and the Company Subsidiaries . Except as currently conducted. None of the Owned Company Intellectual Property is subject to any (i) Liens, except for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights thereto.
(c) The conduct of the business of the Company and the Company Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person except, in each case, for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material have a Company Material Adverse Effect, the Company and adverse its Subsidiaries own, or are licensed to use (in each case, free and clear of any Encumbrances other than Permitted Encumbrances), all Intellectual Property used in the conduct of the business of the Company and the Company its Subsidiaries as currently conducted.
(b) No claims are pending (i) challenging the ownership, enforceability, scope, validity or use by the Company or any of its Subsidiaries of any Company Intellectual Property or (ii) alleging that the Company or any of its Subsidiaries is violating, misappropriating or infringing the Intellectual Property rights of any Person. To the knowledge of the Company, no such claims have been threatened in writing except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) Except as (x) would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or (y) set forth on Section 4.20(c) of the Company Disclosure Schedules, to the knowledge of the Company, (i) no Person is misappropriating, violating or infringing the rights of the Company or any of its Subsidiaries with respect to any Company Intellectual Property and (ii) the operation of the business of the Company and its Subsidiaries does not violate, misappropriate or infringe, and has not since January 1, 2019 violated, misappropriated or infringed, the Intellectual Property rights of any other Person.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material have a Company Material Adverse Effect, the Company has taken commercially reasonable steps to prevent the unauthorized disclosure or use of its trade secrets and adverse to confidential information. To the business knowledge of the Company and the Company SubsidiariesCompany, since January 1, 2021, neither the Company nor any of the Company Subsidiaries is or there has been the subject no unauthorized access, use or disclosure of any claim that is trade secrets or has been asserted or threatened in writing to confidential information of the Company or any of the Company Subsidiaries alleging the conduct of the business by the Company or any of the Company Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights of any other personits Subsidiaries.
(e) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse have a Company Material Adverse Effect, with respect to the business of the Company and the Company SubsidiariesSystems, since January 1, 20212019, no other person (i) there has asserted in writing not been any objection malfunction, unplanned downtime or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property service interruption that has not been received by remedied, (ii) the Company and its Subsidiaries have implemented in a commercially reasonably timely manner all security patches or security upgrades as reasonably necessary and that are generally available for the Systems in the Company or its Subsidiaries’ possession and control, (iii) the Company and its Subsidiaries have taken commercially reasonable steps and implemented commercially reasonable procedures designed to avoid introduction of contaminants (e.g., any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry)) into the Systems that are in the possession and control of the Company or any of its Subsidiaries, and (iv) other than as set forth in Section 4.20(e)(iv) of the Company Subsidiaries.
(f) Since January 1Disclosure Schedules, 2021, (i) to the knowledge of the Company, there has been no other person has infringedbreach of information security, misappropriated or otherwise violated any Intellectual Property Rights owned by or exclusively licensed to the Company or any cybersecurity incident (including ransomware of the Company Subsidiaries, except for any such infringement, misappropriation distributed denial of service attacks) or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole.
(g) The Company and each of the Company Subsidiaries has taken commercially reasonable steps to protect and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual Property. All current and former employees and contractors and any other person having unauthorized access to Confidential Information, have executed and delivered to the Company or one use of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, in violation of any terms or covenant of any such agreements.
(h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conducted, (ii) operate in all material respects in accordance with their documentation, and (iii) to the knowledge of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken has implemented commercially reasonable actions to protect the security, integrityback-ups, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. , and hardware and software support and maintenance designed to minimize the risk of material error, breakdown, failure, or security breach occurring.
(f) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to have a Company Material Adverse Effect, the Company and does not use any Open Source Software in the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
Intellectual Property (i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to would grant any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or Person (other person who is not, as of the date hereof, an employee or contractor of than the Company or any of the its Subsidiaries) any rights or immunities under any Company Subsidiaries who needs such source code to perform their job duties Intellectual Property or services for (ii) under any license requiring the Company or any of its Subsidiaries to disclose or distribute any source code owned by the Company Subsidiaries. Neither or its Subsidiaries to any Person.
(g) Except as (i) individually or in the aggregate, has not had, and would not be reasonably expected to have, a Company Material Adverse Effect or (ii) set forth on Section 4.20(g) of the Company Disclosure Schedules, (A) the Company and its Subsidiaries have complied in all material respects with all applicable Laws, Contract obligations and their own respective privacy policies (“Privacy Policies”) relating to the collection, storage, use, disclosure and transfer of any information held by the Company or its Subsidiaries that can reasonably be used to identify a natural person, including any information defined as “personal data” or “personally identifiable information” or the like under any applicable Law (“Personal Data”), and neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of received a complaint from any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual Property. None of the Company nor any of the Company Subsidiaries is a party to any contract with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respectsparty regarding its collection, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, accessstorage, use, disclosure, interruption, modification, destruction disclosure or acquisition by any third party transfer of Personal Information collected Data that is pending or stored by or on behalf of the Company or Company Subsidiaries unresolved, (a “Security Incident”), except for any such Security Incident that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information against any Security Incident.
(mB) Since January 1, 2021, there have been no Proceedings, and no Proceedings are pending or, to the knowledge of the Company, threatened against the Company and its Subsidiaries have not, since January 1, 2019, experienced any unauthorized access to or any other breach of Personal Data, (C) the Company and its Subsidiaries have commercially reasonable security measures designed to protect any Personal Data stored in their respective information technology systems from unlawful use or access by any third party or any other access or use that would violate applicable Law or the business relating Privacy Policies, and (D) the Company and its Subsidiaries have required any third party with access to Personal Data to execute Contracts requiring them to maintain the Processing confidentiality of such Personal Information. To the knowledge of the Company, the consummation of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy CommitmentsData.
Appears in 2 contracts
Samples: Merger Agreement (American National Group Inc), Merger Agreement (Brookfield Asset Management Reinsurance Partners Ltd.)
Intellectual Property and Data Privacy. (a) Section 3.19(a3.12(a)(i) of the Company Disclosure Letter sets forth (i) a true, correct and complete (in all material respects) list of all active registrations U.S. and foreign (a) issued Patents and pending Patent applications, (b) registered Trademarks and applications for to register any Trademarks, (ic) copyrightsregistered Copyrights and applications to register Copyrights, and (d) material domain name registrations, and (ii) patentsa list of unregistered Intellectual Property that is material to the Business, (iii) trademarksin each case, (iv) domain names that are owned by or registered to an Endo Company and (v) social media handles, included in the Owned Transferred Assets. Except as otherwise set forth in Section 3.12(a)(i) of the Disclosure Letter, the Endo Companies are the sole and exclusive beneficial and record owners of all of the Intellectual Property set forth in Section 3.12(a)(i) of the Disclosure Letter, and all such material issued or registered Intellectual Property is subsisting, enforceable and, to the Knowledge of Sellers, valid. An Endo Company exclusively owns, or has a valid and enforceable license or other right to use, all of the Transferred Intellectual Property in the manner used in the conduct of the Business as currently conducted. The Transferred Intellectual Property constitutes all Intellectual Property owned by the Endo Companies that is used in the conduct of the Business as currently conducted (other than, for clarity, exclusively in connection with the Excluded Assets), and the Transferred Intellectual Property, together with Intellectual Property licensed or otherwise made available to the Endo Companies pursuant to the Transferred Contracts, constitutes all Intellectual Property that is material to or otherwise necessary for the conduct of the Business as currently conducted, except as would not be expected to materially impact the Business.
(b) The Company and the Company Subsidiaries exclusively own or have the right to use all Intellectual Property Rights that are used in the business conduct of the Company Business (including the products and the Company Subsidiaries as currently conducted. None services of the Owned Endo Companies) does not Infringe (and, since January 1, 2020, has not Infringed), in any material respect, any Person’s Intellectual Property. There is no material Action pending or, to the Knowledge of Sellers, threatened, against any Endo Company alleging that the conduct of the Business (including the products and services of the Endo Companies) Infringes any Person’s Intellectual Property is subject to any (i) Liens, except for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights theretoProperty.
(c) The conduct To the Knowledge of the business of the Company and the Company Subsidiaries as currently conducted does not infringeSellers, misappropriate or otherwise violate no Person is Infringing, in any material respect, any Intellectual Property Rights owned by or exclusively licensed to the Endo Companies and included in the Transferred Assets, and no Endo Company, or to Knowledge of Sellers any other personPerson, and has asserted or threatened any Action against any Person alleging that such Person Infringes any such Intellectual Property since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person except, in each case, for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries as currently conducted2020.
(d) Except as would not, individually or Each Endo Company takes commercially reasonable measures to protect the confidentiality of Trade Secrets included in the aggregateTransferred Assets. To the Knowledge of Sellers, reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiariesno employee, since January 1independent contractor, 2021, neither the Company nor any of the Company Subsidiaries is consultant or has been the subject agent of any claim that is Endo Company has misappropriated any trade secrets or has been asserted or threatened in writing to the Company or any of the Company Subsidiaries alleging the conduct of the business by the Company or any of the Company Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights other confidential information of any other personPerson in the course of the performance of his or her duties as an employee, independent contractor, consultant or agent of an Endo Company.
(e) Except as would notNo present or former employee, individually officer or director of any Endo Company, or agent, outside contractor or consultant of any Endo Company, owns or holds any right, title or interest in or to any Transferred Intellectual Property and all Persons involved in the aggregatedevelopment of any Transferred Intellectual Property have entered into written agreements wherein such Person has assigned all of their right, reasonably be expected to be material title and adverse interest in the Transferred Intellectual Property to the business of the Company and the Company Subsidiaries, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiariesapplicable Endo Company.
(f) Since January 1, 20212020, (i) to the knowledge of the Company, no other person has infringed, misappropriated or otherwise violated Endo Companies have not experienced any Intellectual Property Rights owned by or exclusively licensed to the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would not, individually or material defects in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or Software included in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole.
(g) The Company and each of the Company Subsidiaries has taken commercially reasonable steps to protect and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual PropertyTransferred Assets that remain unremedied. All current and former employees and contractors and any other person having access to Confidential Information, have executed and delivered to the Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, in violation of any terms or covenant of any such agreements.
(h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conducted, (ii) operate in all material respects in accordance with their documentation, and (iii) to the knowledge of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions to protect the security, integrity, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
(i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is not, as of the date hereof, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual Property. None of the Company nor any of the Company Subsidiaries is a party to any contract with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”), except for any such Security Incident that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information against any Security Incident.
(m) Since January 1, 2021, there have been no Proceedingsmaterial failures, crashes, security breaches or other adverse events affecting the software, computer hardware, firmware, networks, interfaces and related systems used by the Endo Companies, which have caused material disruption to the Business or which resulted in the loss of Personal Data that required the notification of the applicable Governmental Authorities and of the affected Persons. The Endo Companies take commercially reasonable efforts to provide for the back-up and recovery of material data and have implemented commercially reasonable disaster recovery plans, procedures and facilities and, as applicable, have taken all commercially reasonable steps to implement such plans and procedures.
(g) Since January 1, 2021, the Business has been conducted in compliance with, and the Endo Companies have complied with, in all material respects: (i) all applicable Information Privacy and Security Laws; (ii) all Contracts with third parties to the extent involving the collection, use, or disclosure of Personal Data; and (iii) their published data privacy policies (“Privacy Requirements”). Since January 1, 2021, no Proceedings are pending Endo Company has received any written communication (or, to the knowledge Knowledge of Sellers, any other communication) from any Governmental Authority or private party alleging noncompliance in any material respect with any applicable Privacy Requirements. To the Knowledge of Sellers, there are no facts or circumstances that would require any Endo Company to give notice to any Person of any security breach pursuant to any Privacy Requirements, to the extent any of such notice has not already been given.
(h) Since January 1, 2018, the activities, processes, methods, products or services used, manufactured, dealt in or supplied on or before the date of this Agreement by the Business: (i) do not as of the Companyfiling date of the Chapter 11 Plan, threatened nor did they at the time used, manufactured, dealt in or supplied, infringe the Intellectual Property (including, without limitation, moral rights) of another Person, and (ii) have not and shall not give rise to a claim against the Company or Company Subsidiaries or Endo Companies, in each case in any material respect.
(i) Since January 1, 2021, to the business Knowledge of Sellers, no party to an agreement relating to the Processing use by the Endo Companies of Personal Information. To the knowledge Intellectual Property owned by a third party is, or has at any time been, in material breach of the Company, the consummation of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy Commitmentsagreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Endo, Inc.), Purchase and Sale Agreement (Endo International PLC)
Intellectual Property and Data Privacy. (a) Section 3.19(a4.14(a) of the Company Disclosure Letter sets forth a complete and correct and complete list (in all material respects) of all active registrations material U.S. and pending applications for foreign: (i) copyrightspatents and patent applications, (ii) patentstrademark registrations and applications, (iii) trademarks, copyright registrations and (iv) material domain names and (v) social media handles, included in the Owned Company Intellectual Property.
(b) The Company and the Company Subsidiaries exclusively own or have the right to use all Intellectual Property Rights that are used in the business of the Company and the Company Subsidiaries as currently conducted. None of the Owned Company Intellectual Property is subject to any (i) Liens, except for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights thereto.
(c) The conduct of the business of the Company and the Company Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person exceptnames, in each case, for any such infringementincluded in the Company IP. Each of the items on Section 4.14(a) of the Company Disclosure Letter is subsisting and, misappropriation or other violation that to the Knowledge of the Company, valid and enforceable, in each case, except as would not, individually or in the aggregate, reasonably be expected to be material have a Company Material Adverse Effect.
(b) The Acquired Companies exclusively own all right, title and adverse interest to and in the Company IP, free and clear of any Liens (other than Permitted Liens) and, to the Knowledge of the Company, have the right to use all other Intellectual Property Rights used in the conduct the business of the Company and the Company Subsidiaries Acquired Companies as currently conducted, except where the failure to own such Company IP or have the right to use such applicable Intellectual Property Right would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(dc) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to have a Company Material Adverse Effect, the business conduct of the Company and the Company Subsidiaries, since January 1, 2021, neither the Company nor any of the Company Subsidiaries Acquired Companies’ businesses does not infringe or misappropriate any Intellectual Property Right of any other Person (and has not done so for the past three (3) years) and no Proceeding is or pending or, during the past three (3) years, has been the subject of any claim that is or has been asserted or threatened in writing to the and remains outstanding against any Acquired Company alleging any such infringement or any misappropriation by such Acquired Company of the Company Subsidiaries alleging the conduct of the business by the Company or any of the Company Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights of another Person. To the Knowledge of the Company, no Person is infringing or misappropriating any other personCompany IP in any material respect.
(d) The Acquired Companies take commercially reasonable measures to protect, safeguard and maintain the confidentiality of any Company IP that the Acquired Companies hold as a trade secret.
(e) Except In connection with their collection, processing, storage, transfer and/or use of any Personal Information from individuals during the past three (3) years, the Acquired Companies have complied with applicable requirements under Applicable Laws relating to privacy and the collection, processing storage, transfer and/or use of Personal Information (collectively, the “Data Privacy Laws”) and privacy policies publicly published by the Acquired Companies, in each case except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the have a Company and the Company Subsidiaries, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiaries.
(f) Since January 1, 2021, (i) to the knowledge of the Company, no other person has infringed, misappropriated or otherwise violated any Intellectual Property Rights owned by or exclusively licensed to the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole.
(g) Material Adverse Effect. The Company and each of the Company Subsidiaries has taken Acquired Companies have commercially reasonable steps to protect physical, technical, organizational and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information administrative security measures and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual Property. All current and former employees and contractors and any other person having access to Confidential Information, have executed and delivered to the Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, policies in violation of any terms or covenant of any such agreements.
(h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conducted, (ii) operate in all material respects in accordance with their documentation, and (iii) to the knowledge of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions place designed to protect the securityCompany IT Assets and any Personal Information they collect and maintain from and against unauthorized access, integrityuse and/or disclosure, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. Except except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the have a Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
(i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is not, as of the date hereof, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual PropertyMaterial Adverse Effect. None of the Acquired Companies have received written communication from any Governmental Authority that alleges that such Acquired Company nor any of the Company Subsidiaries is a party to any contract not in compliance with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Data Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”), except for any such Security Incident that as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the have a Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information against any Security IncidentMaterial Adverse Effect.
(mf) Since January 1The Acquired Companies take commercially reasonable measures designed to prevent the introduction of viruses, 2021bugs, disabling codes, spyware, trojan horses, worms and other malicious code or corruptants (collectively, “Viruses”) into the Company IT Assets that would have a material adverse effect on the operation or use of such Company IT Assets in the business of the Acquired Companies, and, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company IT Assets are free of any Viruses. During the past three (3) years, there have not been no Proceedingsany violation, and no Proceedings are pending oroutages, corruptions, unauthorized intrusions or breaches of security with respect to the knowledge Company IT Assets or any other unauthorized access to, or use of, any Personal Information in the possession or control of the CompanyAcquired Companies, threatened against in each case, except as would not, individually or in the aggregate, have a Company or Company Subsidiaries or the business relating to the Processing of Personal Information. To the knowledge of the Company, the consummation of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy CommitmentsMaterial Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Retail Opportunity Investments Partnership, LP)
Intellectual Property and Data Privacy. (a) Section 3.19(a4.14(a) of the Company Disclosure Letter sets forth a correct complete and complete accurate list (in all material respects) of all active registrations material U.S. and pending applications for foreign: (i) copyrightspatents and patent applications, (ii) patentstrademark registrations and applications, (iii) trademarks, copyright registrations and (iv) material domain names and (v) social media handles, included in the Owned Company Intellectual Property.
(b) The Company and the Company Subsidiaries exclusively own or have the right to use all Intellectual Property Rights that are used in the business of the Company and the Company Subsidiaries as currently conducted. None of the Owned Company Intellectual Property is subject to any (i) Liens, except for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights thereto.
(c) The conduct of the business of the Company and the Company Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person exceptnames, in each case, for any such infringementincluded in the Company IP. Each of the items on Section 4.14(a) of the Company Disclosure Letter is subsisting and, misappropriation or other violation that to the Knowledge of the Company, valid and enforceable, in each case, except as would not, individually or in the aggregate, reasonably be expected to be material have a Company Material Adverse Effect.
(b) The Acquired Companies exclusively own all right, title and adverse interest to and in the Company IP, free and clear of any Liens (other than Permitted Liens) and, to the Knowledge of the Company, have the right to use all other Intellectual Property Rights used in the conduct the business of the Company and the Company Subsidiaries Acquired Companies as currently conducted, except where the failure to own such Company IP or have the right to use such applicable Intellectual Property Right would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(dc) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to have a Company Material Adverse Effect, the business conduct of the Company and the Company Subsidiaries, since January 1, 2021, neither the Company nor any of the Company Subsidiaries Acquired Companies’ businesses does not infringe or misappropriate any Intellectual Property Right of any other Person (and has not done so for the past three (3) years) and no Proceeding is or pending or, during the past three (3) years, has been the subject of any claim that is or has been asserted or threatened in writing to the and remains outstanding against any Acquired Company alleging any such infringement or any misappropriation by such Acquired Company of the Company Subsidiaries alleging the conduct of the business by the Company or any of the Company Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights of another Person. To the Knowledge of the Company, no Person is infringing or misappropriating any other personCompany IP in any material respect.
(d) The Acquired Companies take commercially reasonable measures to protect, safeguard and maintain the confidentiality of any Company IP that the Acquired Companies hold as a trade secret.
(e) Except as set forth on Section 4.14(e) of the Company Disclosure Letter, in connection with its collection, processing, storage, transfer and/or use of any Personal Information from individuals during the past three (3) years, the Acquired Companies have complied with applicable requirements under Applicable Laws relating to privacy and the collection, processing storage, transfer and/or use of Personal Information (collectively, the “Data Privacy Laws”) and privacy policies publicly published by the Acquired Companies, in each case except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the have a Company and the Company Subsidiaries, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiaries.
(f) Since January 1, 2021, (i) to the knowledge of the Company, no other person has infringed, misappropriated or otherwise violated any Intellectual Property Rights owned by or exclusively licensed to the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole.
(g) Material Adverse Effect. The Company and each of the Company Subsidiaries has taken Acquired Companies have commercially reasonable steps to protect physical, technical, organizational and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information administrative security measures and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual Property. All current and former employees and contractors and any other person having access to Confidential Information, have executed and delivered to the Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, policies in violation of any terms or covenant of any such agreements.
(h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conducted, (ii) operate in all material respects in accordance with their documentation, and (iii) to the knowledge of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions place designed to protect the securityCompany IT Assets and any Personal Information they collect and maintain from and against unauthorized access, integrityuse and/or disclosure, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. Except except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the have a Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
(i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is not, as of the date hereof, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual PropertyMaterial Adverse Effect. None of the Acquired Companies have received written communication from any Governmental Authority that alleges that such Acquired Company nor any of the Company Subsidiaries is a party to any contract not in compliance with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Data Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”), except for any such Security Incident that as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the have a Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information against any Security IncidentMaterial Adverse Effect.
(mf) Since January 1The Acquired Companies take commercially reasonable measures designed to prevent the introduction of viruses, 2021bugs, disabling codes, spyware, trojan horses, worms and other malicious code or corruptants (collectively, “Viruses”) into the Company IT Assets that would have a material adverse effect on the operation or use of such Company IT Assets in the business of the Acquired Companies, and, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company IT Assets are free of any Viruses. During the past three (3) years, there have not been no Proceedingsany violation, and no Proceedings are pending oroutages, corruptions, unauthorized intrusions or breaches of security with respect to the knowledge Company IT Assets or any other unauthorized access to, or use of, any Personal Information in the possession or control of the CompanyAcquired Companies, threatened against in each case, except as would not, individually or in the aggregate, have a Company or Company Subsidiaries or the business relating to the Processing of Personal Information. To the knowledge of the Company, the consummation of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy CommitmentsMaterial Adverse Effect.
Appears in 1 contract
Intellectual Property and Data Privacy. (a) Section 3.19(a3.18(a) of the Company Disclosure Letter sets forth a correct true and complete list of all active registrations and pending applications for (i) registered trademarks, service marks or tradenames, patents, patent applications, registered copyrights, (ii) patents, (iii) trademarks, (iv) applications to register copyrights and Internet domain names and (v) social media handles, included in the Owned Company Intellectual Property.
(b) The Company and owned or purported by the Company to be owned by the Company or any of its Subsidiaries exclusively own or have on the right to use all Intellectual Property Rights date of this Agreement and that are used in material to the business businesses of the Company and the its Subsidiaries taken as a whole (collectively, “Company Subsidiaries as currently conductedRegistered IP”). None of the Owned Company All Intellectual Property is subject required to any (ibe disclosed in Section 3.18(a) Liens, except for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights thereto.
(c) The conduct of the business of the Company Disclosure Letter is subsisting, and to the knowledge of the Company, valid and enforceable. No Company Registered IP is involved in any interference, reissue, reexamination, opposition, cancellation or similar proceeding and, to the knowledge of the Company, no such action is or has been threatened with respect to any of the Company Subsidiaries Registered IP. Except as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person except, in each case, for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, all right, title and interest in and to all Owned Intellectual Property is solely and exclusively owned by the Company or one of its Subsidiaries free and clear of all Liens, and all other material Intellectual Property used, practiced or held for use or practice by the Company or any of its Subsidiaries (the “Licensed Intellectual Property”) is validly licensed to the Company or its Subsidiaries pursuant to a valid and enforceable written Contract. Since January 1, 2019, neither the Company nor any of its Subsidiaries has received any written notice or claim challenging the ownership, use, validity or enforceability of any Company Registered IP. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Owned Intellectual Property and the Licensed Intellectual Property (when used within the scope of the applicable license) constitute all Intellectual Property necessary and sufficient to enable the Company and each its Subsidiaries to conduct their respective businesses as currently conducted.
(b) Each of the Company and its Subsidiaries has taken commercially reasonable steps to maintain the confidentiality of all information of the Company or its Subsidiaries that derives economic value (actual or potential) from not being generally known to other Persons (“Trade Secrets”) material and adverse to the business of the Company and the Company or any of its Subsidiaries as currently conducted, including taking commercially reasonable steps to safeguard any such information that is accessible through computer systems or networks.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company and its Subsidiaries are not infringing upon, misappropriating or otherwise violating, and, since January 1, 2019, have not infringed upon, misappropriated or otherwise violated, any Intellectual Property of any third party in connection with the conduct of their respective businesses in any material respect, and neither the Company nor any of its Subsidiaries has received since January 1, 2019 any written notice or claim asserting that any such infringement, misappropriation or other violation has occurred or is occurring, which notice or claim remains pending or unresolved, (ii) to the knowledge of the Company, no third party is infringing upon, misappropriating or otherwise violating any material Owned Intellectual Property and (iii) no Owned Intellectual Property that is material to the conduct of the business of the Company and its Subsidiaries is subject to any outstanding order, judgment, decree or stipulation restricting or limiting in any material respect the use or licensing thereof by the Company or any of its Subsidiaries.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of have a Material Adverse Effect, the Company and each of its Subsidiaries takes, and has taken, commercially reasonable steps to maintain and protect the Company Subsidiariesperformance, since January 1confidentiality, 2021integrity and security of all material information technology, neither the Company nor any of the Company Subsidiaries is computers, computer systems and communications systems owned, operated, leased or has been the subject of any claim that is or has been asserted or threatened in writing to the Company or any of the Company Subsidiaries alleging the conduct of the business licensed by the Company or any of its Subsidiaries (collectively, the “IT Systems”) (and all software, information and data stored or contained therein or transmitted thereby). The IT Systems are adequate in all material respects for the operation of the respective businesses of the Company and each of its Subsidiaries infringesas currently conducted. To the knowledge of the Company, misappropriates there have been no (i) security breaches or otherwise violates any Intellectual Property Rights unauthorized use, access or intrusions of any other personIT Systems or (ii) outages of any IT Systems that have caused or resulted in a material disruption to the businesses of the Company or any of its Subsidiaries.
(e) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of have a Material Adverse Effect, the Company and the Company Subsidiariesits Subsidiaries and, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiaries.
(f) Since January 1, 2021, (i) to the knowledge of the Company, no other person has infringed, misappropriated any Person acting for or otherwise violated any Intellectual Property Rights owned by or exclusively licensed to on the behalf of the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company its Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole.
(g) The Company and each of the Company Subsidiaries has taken commercially reasonable steps to protect and preserve have complied with (i) the confidentiality of all of its proprietary, confidential or non-public information and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual Property. All current and former employees and contractors and any other person having access to Confidential Information, have executed and delivered to the Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, in violation of any terms or covenant of any such agreements.
(h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conductedapplicable Privacy Laws, (ii) operate in all material respects in accordance with their documentationof the Company’s and its Subsidiaries’ respective public facing policies and notices regarding Personal Information, and (iii) to the knowledge all of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware ’s and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions its Subsidiaries’ respective contractual obligations with respect to protect the security, integrity, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangementsPersonal Information. Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to have a Material Adverse Effect, none of the Company’s or its Subsidiaries’ privacy policies or notices have contained any omissions or been misleading or deceptive. Since January 1, 2018, the Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
its Subsidiaries have (i) The Company implemented and Company Subsidiaries have not incorporated maintained reasonable and appropriate technical and organizational safeguards to protect Personal Information and other confidential data in their possession or under their control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure, and (ii) taken commercially reasonable steps to ensure that any open source software in, third party with access to Personal Information collected by or used any open source software in connection with, any proprietary software owned by any on behalf of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is not, as of the date hereof, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available implemented and maintained the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual Property. None of the Company nor any of the Company Subsidiaries is a party to any contract with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”)same. To the knowledge of the Company, all vendors, processors, or other any third parties acting for or on behalf of party who has provided Personal Information to the Company and the Company Subsidiaries in connection with the Processing of Personal Information are has done so in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”). In each case, except for any such Security Incident that as would not, individually or in the aggregate, reasonably be expected to be material and adverse have a Material Adverse Effect, there have been no breaches, security incidents, misuse of or unauthorized access to or disclosure of any Personal Information in the businesses possession or control of the Company and the Company or its Subsidiaries as currently conducted. The Company and the Company Subsidiaries haveor collected, and have contractually required any affiliates, vendors used or other third persons Processing Personal Information for processed by or on behalf of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has provided or been legally required to have, implemented appropriate administrative, physical and technical safeguards provide any notices to protect the confidentiality, integrity and security of Personal Information against any Security Incident.
(m) Since January 1, 2021, there have been no Proceedings, and no Proceedings are pending or, to the knowledge of the Company, threatened against the Company or Company Subsidiaries or the business relating to the Processing Person in connection with a disclosure of Personal Information. To the knowledge As of the Companydate of this Agreement, the consummation Company has not been charged with, or received any written notice of any material claims of, or material investigations or inquires related to, the violation of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy CommitmentsLaws, applicable privacy policies, or contractual commitments with respect to Personal Information.
(f) As used in this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Foundation Building Materials, Inc.)
Intellectual Property and Data Privacy. (a) Section 3.19(a3.21(a) of the Company Disclosure Letter sets forth a correct true and complete (in all material respects) list of all active registrations and Owned Intellectual Property that is registered, issued or the subject of a published pending applications application for (i) copyrights, (ii) patents, (iii) trademarks, (iv) domain names and (v) social media handles, included in registration as of the Owned Company Intellectual Propertydate of this Agreement.
(b) The Company and Either the Company or one of its Subsidiaries exclusively own or have the right to use all Intellectual Property Rights that are used in the business of the Company and the Company Subsidiaries as currently conducted. None of the Owned Company Intellectual Property is subject to any (i) Liensowns and possesses all right, except for title and interest in and to the Owned Intellectual Property, free and clear of all Liens (other than Permitted Liens, ) or (ii) Order materially has a valid right to use the Licensed Intellectual Property, except, in each case of clause (i) or (ii), as would not reasonably be expected to have a Company Material Adverse Effect. Except as would not reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed to the creation, invention or development of any Owned Intellectual Property have assigned to the Company or its Subsidiaries their rights and adversely affecting interests therein that do not initially vest with the use thereof or rights theretoCompany and its Subsidiaries by operation of Law.
(c) The conduct Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) the Owned Intellectual Property is subsisting, and to the Knowledge of the business Company, valid and enforceable and (ii) to the Knowledge of the Company, the Company and the Company its Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has have not infringed, misappropriated or otherwise violated any the Intellectual Property Rights rights of any person except, in each case, for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries as currently conductedthird party.
(d) Except as would not, individually or in the aggregate, not reasonably be expected to be material and adverse to the business of the have a Company and the Company Subsidiaries, since January 1, 2021Material Adverse Effect, neither the Company nor any of its Subsidiaries has received funding from a Governmental Authority to develop any Owned Intellectual Property in a manner that would require the Company Subsidiaries is or such Subsidiary to license such Owned Intellectual Property to such Governmental Authority.
(e) During the three (3) year period prior to the date of this Agreement, (i) there has been no Legal Action pending or, to the subject Knowledge of any claim that is or has been asserted or the Company, threatened in writing to against, the Company or any of its Subsidiaries (A) alleging that the Company Subsidiaries alleging or such Subsidiary is infringing, misappropriating or otherwise violating any Intellectual Property of any third party or (B) challenging or seeking to deny, revoke or limit the conduct Company’s or any of its Subsidiaries’ rights in any Owned Intellectual Property, and (ii) to the Knowledge of the business by Company, no Person is infringing, misappropriating or otherwise violating any Owned Intellectual Property, except, in each case of clause (i) or (ii), as would not reasonably be expected to have a Company Material Adverse Effect.
(f) To the Knowledge of the Company, the consummation of the Transactions shall not alter, impair or extinguish any Rights of the Company or any of its Subsidiaries in the Company Subsidiaries infringes, misappropriates or otherwise violates any Owned Intellectual Property Rights of any other person.
(e) Except or Licensed Intellectual Property, except as would not, individually or in the aggregate, not reasonably be expected to be material and adverse to the business of the have a Company and the Company Subsidiaries, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiaries.
(f) Since January 1, 2021, (i) to the knowledge of the Company, no other person has infringed, misappropriated or otherwise violated any Intellectual Property Rights owned by or exclusively licensed to the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a wholeMaterial Adverse Effect.
(g) The Company and each of the Company its Subsidiaries has have taken commercially reasonable steps efforts to maintain and protect the Owned Intellectual Property, including any and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material secrets included in the Owned Company Intellectual Property. All current and former employees and contractors and any other person having access , except as would not reasonably be expected to Confidential Information, have executed and delivered to the a Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, in violation of any terms or covenant of any such agreementsMaterial Adverse Effect.
(h) All IT Systems are: To the Knowledge of the Company, the Company and its Subsidiaries have not distributed, licensed, conveyed, released or made available to any Person any material proprietary software that is, in whole or in part, subject to or governed by a Specified OSS License in a manner that, based on the Company’s or its Subsidiaries’ use of such Specified OSS License, would require (i) sufficient the disclosure, licensing or distribution of any material proprietary source code owned the Company or its Subsidiaries or (ii) that such material proprietary source code be made available at no charge or otherwise licensed to third parties for the operation purpose of making derivative works.
(i) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) the business computers, systems and IT assets of the Company and each Subsidiary of the Company Subsidiaries operate and perform in a manner that permits the Company and each Subsidiary of the Company to conduct its business as currently conducted, (ii) operate in all material respects in accordance with their documentation, the Company and (iii) to the knowledge each Subsidiary of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions to protect the securityactions, integrity, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. Except as would not, individually or consistent with current general commercial practice in the aggregateautomotive software industries, reasonably be expected to be material and adverse to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
(i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is not, as of the date hereof, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual Property. None of the Company nor any of the Company Subsidiaries is a party to any contract with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”), except for any such Security Incident that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information their computers, systems and IT assets (and the information and data stored thereon or processed thereby) against unauthorized use, access, interruption, modification or corruption, including where the unauthorized event results from the use of any Security Incident.
malicious code (mincluding viruses, worms, Trojan horse, malware and ransomware), and to the Knowledge of the Company, no such unauthorized use, access, interruption, modification or corruption has occurred, (iii) Since January 1the Company and each Subsidiary of the Company are in compliance with all applicable Laws governing privacy, 2021data protection, there and the collection, use, storage, processing and disclosure of personally identifiable information, and all privacy policies established by, and contractual obligations binding upon, the Company or any of its Subsidiaries with respect to the foregoing, and (iv) no claims have been no Proceedings, and no Proceedings are pending asserted or, to the knowledge Knowledge of the Company, threatened against the Company or any Subsidiary of the Company Subsidiaries or the business alleging any violation relating to privacy, data protection and the Processing collection of Personal Information. To the knowledge of the Company, the consummation of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy Commitmentspersonal information.
Appears in 1 contract
Samples: Merger Agreement (CDK Global, Inc.)
Intellectual Property and Data Privacy. (a) Section 3.19(a) of the Company Disclosure Letter sets forth a correct and complete list of all active registrations and pending applications for (i) copyrights, (ii) patents, (iii) trademarks, (iv) domain names and (v) social media handles, included in the Owned Company Intellectual Property.
(b) The Company and the Company Subsidiaries exclusively own or have the right Except as would not reasonably be expected to use all Intellectual Property Rights that are used in the business of the Company and the Company Subsidiaries as currently conducted. None of the Owned Company Intellectual Property is subject to any (i) Liens, except for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights thereto.
(c) The conduct of the business of the Company and the Company Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person except, in each case, for any such infringement, misappropriation or other violation that would nothave, individually or in the aggregate, a Material Adverse Effect, each (i) trademark and service mxxx registrations and applications, (ii) copyright registrations, (iii) domain name registrations and (iv) patents and patent applications, in each case, that are owned by one of the Debtors, are subsisting, valid, in full force and effect and have not expired or been cancelled, abandoned or otherwise terminated, and the payment of all renewal and maintenance fees and expenses in respect thereof, and all filings related to renewal and maintenance, have been duly and timely made.
(b) Except as would not reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries as currently conducted.
(d) Except as would nothave, individually or in the aggregate, reasonably a Material Adverse Effect, (i) each of the Debtors owns, possesses, or can acquire on reasonable terms, the right to use, all of the patents, patent rights, trademarks, service marks, trade names, copyrights, and domain names (collectively, “Intellectual Property Rights”) that are necessary for the operation of their respective businesses, (ii) upon the consummation of the transactions contemplated by this Agreement, all Intellectual Property Rights owned by the Debtors that are necessary for the operation of their respective businesses as presently conducted shall survive and be expected to be material available for use in the same manner and adverse on substantially the same terms as of immediately prior to the business date hereof, (iii) to the Knowledge of the Company and the Company SubsidiariesCompany, since January 1, 2021, neither the Company nor any none of the Company Subsidiaries Debtors is or has been the subject of any claim that is or has been asserted or threatened in writing to the Company or any of the Company Subsidiaries alleging the conduct of the business by the Company or any of the Company Subsidiaries infringesinterfering with, misappropriates infringing upon, misappropriating or otherwise violates violating in any material respect any valid Intellectual Property Rights of any other personPerson, (iv) no claim or litigation regarding any of the foregoing that is (or would be) reasonably expected to have a Material Adverse Effect is pending or, to the Knowledge of the Company, threatened in writing, (v) to the Knowledge of the Company, no third party is misappropriating or infringing any Intellectual Property Rights owned by the Debtors, and (vi) to the Knowledge of the Company, no Intellectual Property Right owned by the Debtors is subject to any outstanding Order, judgment, decree or stipulation restricting or limiting in any material respect the use or licensing thereof by the Debtors.
(ec) Except as would notnot reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each of the Debtors complies in all material respects with applicable Law, as well as its own rules, policies, and procedures, relating to privacy, data protection and the collection, retention, protection and use of personal information collected, used or held for use by it and its Subsidiaries, (ii) each of the Debtors complies in all material respects with the applicable Payment Card Industry Data Security Standard with respect to any payment card data that it and its Subsidiaries has collected or handled, (iii) each of the Debtors complies in all material respects with all Material Contracts under which a Debtor is a party to or bound by relating to privacy, data protection and the collection, retention, protection and use of personal information collected, used or held for use by a Debtor and (iv) no claim or litigation regarding any of the foregoing that is (or would be) reasonably expected to have a Material Adverse Effect is pending or, to the Knowledge of the Company, threatened in writing. To the Knowledge of the Company, except as would not reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiaries.
(f) Since January 1, 2021, (i) to the knowledge of the Company, no other person has infringed, misappropriated or otherwise violated any Intellectual Property Rights owned by or exclusively licensed to the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would nothave, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole.
(g) The Company and each of the Company Subsidiaries has taken commercially reasonable steps to protect and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual Property. All current and former employees and contractors and any other person having access to Confidential Information, have executed and delivered to the Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, in violation of any terms or covenant of any such agreements.
(h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conducted, (ii) operate in all material respects in accordance with their documentation, and (iii) to the knowledge of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions to protect the security, integrity, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
(i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is not, as of the date hereof, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual Property. None of the Company nor any of the Company Subsidiaries is a party to any contract with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”), except for any such Security Incident that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information against any Security Incident.
(m) Since January 1, 2021Material Adverse Effect, there have been no Proceedings, and no Proceedings are pending or, to security breaches in the knowledge of the Company, threatened against the Company or Company Subsidiaries or the business relating to the Processing of Personal Information. To the knowledge of the Company, the consummation information technology systems of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy CommitmentsDebtors.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Hertz Corp)
Intellectual Property and Data Privacy. (a) Section 3.19(a4.16(a) of the Company Disclosure Letter sets forth a correct true and complete list list, as of the date of this Agreement, of all active registrations and pending applications for Registered Intellectual Property owned by Company or a Company Subsidiary after giving effect to the Separation (i) copyrightscollectively, (ii) patents, (iii) trademarks, (iv) domain names and (v) social media handles, included in the Owned “Company Registered Intellectual Property.
”). Company or a Company Subsidiary is the sole and exclusive owner of all material Company Registered Intellectual Property owned, or purported to be owned, by Company or a Company Subsidiary free and clear of all Liens other than Company Permitted Liens. Company or a Company Subsidiary owns or has (b) The Company and or following the Company Subsidiaries exclusively consummation of the Separation will own or have will have) the valid right to use all material Intellectual Property Rights that are used necessary to conduct the Company Business in all material respects in substantially the business of same manner as conducted by the Company and the Company Subsidiaries on the date of this Agreement and as currently conductedof immediately prior to the Closing (collectively, the “Company Intellectual Property”), free and clear of all Liens other than Company Permitted Liens. None of the Owned The Company Registered Intellectual Property is subject subsisting and, to the knowledge of Company, valid and enforceable.
(b) Immediately following the Closing (taking into account the Separation and the other Transactions), and except with respect to any (i) LiensIntellectual Property licensed under the Transition Services Agreement or under Sections 9.02 and 9.03 of the Separation Agreement, except Outdoor Products and the Outdoor Products Subsidiaries will not own any Intellectual Property necessary for Permitted Liens, or (ii) Order materially and adversely affecting the use thereof or rights theretoconduct of the Company Business.
(c) The conduct of the business of the Company and the Company Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any other person, and since January 1, 2021 has not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any person except, in each case, Except for any such infringement, misappropriation or other violation that would notthose matters that, individually or in the aggregate, have not been, or would not reasonably be expected to be be, material and adverse to the business Company Business, taken as a whole, (i) no Actions are pending or, since April 1, 2021, have been threatened in writing, or to the knowledge of Company, orally threatened, to the Company or the Subsidiaries, in each case against Company or any of the Company and Subsidiaries by any Person relating to the Company Business (A) claiming that Company or any of the Company Subsidiaries is infringing, diluting, misappropriating, or otherwise violating, or has infringed, diluted, misappropriated, or otherwise violated, any third-party Intellectual Property or (B) challenging the validity, ownership, patentability, enforceability, ability to register or use by Company or any of its Subsidiaries any Company Intellectual Property (including Actions before the United States Patent and Trademark Office or comparable foreign governmental authorities, but excluding office actions received during prosecution); (ii) to the knowledge of Company, the conduct of the Company Business, including the provision of products and services does not infringe, dilute, misappropriate or violate, and since April 1, 2021, has not, infringed, diluted, misappropriated, or otherwise violated any Intellectual Property of another Person; (iii) since April 1, 2021, none of Company or any of the Company Subsidiaries has filed any Action or threatened in writing any claim against any third Person alleging that such Person infringes, dilutes, misappropriates, or violates any Company Intellectual Property; and (iv) to the knowledge of Company, as currently conductedof the date of this Agreement, no Person is infringing, diluting, misappropriating, or violating any Company Owned Intellectual Property.
(d) Except as would notfor those matters that, individually or in the aggregate, have not been, or would not reasonably be expected to be be, material and adverse to the business Company Business, taken as a whole, all Persons, including past and present employees and contractors of the Company and the Company Subsidiaries, who have contributed to or participated in the conception or development of any material Company Owned Intellectual Property have entered into valid and enforceable written proprietary rights agreements with Company or a Company Subsidiary pursuant to which such Persons assign ownership of all their rights in such Intellectual Property exclusively to Company or its applicable Subsidiary and agree to maintain the confidentiality of such Intellectual Property. To the knowledge of Company, no such Person is in breach of such agreements.
(e) Company and its Subsidiaries have taken commercially reasonable steps to preserve, protect, and enforce all material Company Owned Intellectual Property, and maintain the confidentiality of all material confidential Company Intellectual Property, including material confidential and proprietary Know-How included in the Company Intellectual Property, and to comply with all duties to protect confidential information provided to Company or a Company Subsidiary by another Person.
(f) Except for those matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each of the IT Systems used by Company and each of the Company Subsidiaries operates and performs in all respects as required to permit Company and Company Subsidiaries to conduct the Company Business as currently conducted, and Company and each of the Company Subsidiaries owns or otherwise has the right to use all such IT Systems, (ii) Company and the Company Subsidiaries have taken reasonable actions necessary and in accordance with industry standards and legal requirements to protect the security, and integrity of the IT Systems used by Company and each of the Company Subsidiaries and the data stored or contained therein or transmitted thereby; and since January April 1, 2021, there has not been any failure with respect to any of the IT Systems used by Company and each of the Company Subsidiaries that has not been remedied or replaced in all respects, (iii) Company and the Company Subsidiaries have implemented and maintained disaster recovery and business continuity measures, and (iv) to the knowledge of Company, the IT Systems used by Company and each Company Subsidiary are free from surreptitious computer code or instructions designed to disrupt, disable, harm or provide unauthorized access to such IT Systems.
(g) Except for those matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) Company and the Company Subsidiaries are in compliance with all Privacy and Data Security Requirements; (ii) to the knowledge of Company, since April 1, 2021, there have not been any incidents of, or third-party claims related to, any loss, theft, unauthorized access to, or unauthorized acquisition, modification, disclosure or corruption of any Personal Information in Company’s or any of the Company Subsidiaries’ possession; (iii) as of the date of this Agreement, neither the Company nor any of the Company Subsidiaries is or has been the subject received any written notice of any claim that is claims, investigations (including investigations by any Governmental Authority), or has been asserted or threatened in writing to the Company or any of the Company Subsidiaries alleging the conduct of the business by the Company or any of the Company Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights alleged violations of any other person.
Data Privacy Law; and (e) Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the business of the Company and the Company Subsidiaries, since January 1, 2021, no other person has asserted in writing any objection or claim with respect to the ownership, validity or enforceability of any Owned Company Intellectual Property that has been received by the Company or any of the Company Subsidiaries.
(f) Since January 1, 2021, (iiv) to the knowledge of the Company, no other person has infringed, misappropriated or otherwise violated investigations by any Intellectual Property Rights owned Governmental Authority regarding the Processing of Personal Information by or exclusively licensed to the Company or any of the Company Subsidiaries, except for any such infringement, misappropriation or other violation that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Subsidiary are pending. Company and the Company Subsidiaries as currently conducted and taken as a whole, and (ii) the Company has do not sent any written communication to any person regarding any such actual, alleged, or suspected infringement, misappropriation or other violation of any Owned Company Intellectual Property that would be individually or engage in the aggregate, reasonably expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted and taken as a whole.
(g) The Company and each of the Company Subsidiaries has taken commercially reasonable steps to protect and preserve (i) the confidentiality of all of its proprietary, confidential or non-public information and trade secrets, or such information provided to it by any person and held pursuant to written obligations of confidentiality to such person (“Confidential Information”), and (ii) its ownership of, and rights in, all material Owned Company Intellectual Property. All current and former employees and contractors and any other person having access to Confidential Information, have executed and delivered to the Company or one of the Company Subsidiaries, a written agreement requiring such employee, contractor or other person to protect such Confidential Information and to the knowledge of the Company, no such person has been, or was during employment or engagement with the Company or any of the Company Subsidiaries, in violation of any terms or covenant of any such agreements.
(h) All IT Systems are: (i) sufficient for the operation of the business of the Company and Company Subsidiaries as currently conducted, (ii) operate in all material respects in accordance with their documentation, and (iii) to the knowledge of the Company, free from harmful code, viruses, worms, time bombs, key locks, malware and other corruptants (collectively, “Malicious Code”), in each case, that would have any materially adverse impact on the IT Systems. The Company and Company Subsidiaries have taken commercially reasonable actions to protect the security, integrity, confidentiality and continuous operation of the IT Systems including implementing, maintaining, and periodically testing appropriate backup and disaster recovery arrangements. Except as would not, individually or in the aggregate, reasonably be expected to be material and adverse to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2021, there has been no denial-of-service or other cyberattack in respect of the IT Systems.
(i) The Company and Company Subsidiaries have not incorporated any open source software in, or used any open source software in connection with, any proprietary software owned by any of the Company or Company Subsidiaries and material to the operation of the business conducted by the Company and Company Subsidiaries (“Company Proprietary Software”) in a manner that requires the contribution, licensing, or disclosure to any third party of any portion of the source code of any such material software or that would otherwise diminish or transfer the rights of ownership in any material Owned Company Intellectual Property or software of the Company or any Company Subsidiary. No source code for any Company Proprietary Software has been delivered, licensed, or made available to any escrow agent or other person who is notsale, as of the date hereofsuch term defined by applicable Law, an employee or contractor of the Company or any of the Company Subsidiaries who needs such source code to perform their job duties or services for the Company or any of the Company Subsidiaries. Neither the Company nor any of its Subsidiaries has any duty or obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Company Proprietary Software to any escrow agent or other person. No Company Proprietary Software contains any Malicious Code. The Company and each of the Company Subsidiaries implements industry standard measures designed to prevent the introduction of Malicious Code into the Company Proprietary Software, including firewall protections and regular virus scans.
(j) No funding, facilities, or personnel of any Governmental Entity or university or other educational institution were used to develop or create, in whole or in part, any material Owned Company Intellectual Property. None of the Company nor any of the Company Subsidiaries is a party to any contract with any Governmental Entity that grants to such Governmental Entity any right or license with respect to any Owned Company Intellectual Property.
(k) The Company and Company Subsidiaries are in compliance in all material respects with (i) all applicable Privacy Laws, (ii) the Privacy Policies of the Company and Company Subsidiaries and (iii) the requirements of any Contract applicable to the Company or the Company Subsidiaries relating to the Processing of Personal Information (collectively, the “Privacy Commitments”). To the knowledge of the Company, all vendors, processors, or other third parties acting for or on behalf of the Company and the Company Subsidiaries in connection with the Processing of Personal Information are in compliance in all material respects, and at all times since January 1, 2021 have complied in all material respects, with all applicable Privacy Laws.
(l) To the knowledge of the Company, since January 1, 2021, there has been no unauthorized or unlawful Processing, control, access, use, disclosure, interruption, modification, destruction or acquisition by any third party of Personal Information collected or stored by or on behalf of the Company or Company Subsidiaries (a “Security Incident”), except for any such Security Incident that would not, individually or in the aggregate, reasonably be expected to be material and adverse to the businesses of the Company and the Company Subsidiaries as currently conducted. The Company and the Company Subsidiaries have, and have contractually required any affiliates, vendors or other third persons Processing Personal Information for or on behalf of the Company or the Company Subsidiaries to have, implemented appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Information against any Security Incident.
(m) Since January 1, 2021, there have been no Proceedings, and no Proceedings are pending or, to the knowledge of the Company, threatened against the Company or Company Subsidiaries or the business relating to the Processing of Personal Information. To the knowledge of the Company, the consummation of any of the transactions contemplated hereby will not (i) trigger any notices to or consents from any person under or (ii) violate any Privacy Commitments.
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