Intellectual Property and Data Privacy. (a) Section 4.18(a) of the Disclosure Schedule identifies, as of the date of this Agreement, all Intellectual Property that is (i) Owned Intellectual Property subject to an application or registration with a Governmental Entity (by name, owner and, where applicable, registration or application number and jurisdiction) (the “Registered IP”), (ii) material trade secrets (as such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839) and included in the Owned Intellectual Property (the “Company Trade Secrets”), and (iii) all other Intellectual Property owned by a third party that is licensed to the Company Entities that is material to the operation of the business of the Company Entities, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP and Company Trade Secrets, the “Scheduled IP”). Each item of Registered IP is valid and subsisting (other than applications). (b) Except as identified in Section 4.18(b) of the Disclosure Schedule, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business as currently conducted. (c) Except as identified in Section 4.18(c) of the Disclosure Schedule, (i) no Company Entity is currently infringing any Intellectual Property owned by any third party that is not licensed to the Company Entities, and, to the Knowledge of the Company, no third party is currently infringing in any material respect any Owned Intellectual Property. All claims made by the Company Entities in connection with an application for marketing approval from a Governmental Entity, or on or in connection with the advertising, offering for sale or sale of products or services by the Company Entities (including labels, packaging and other communications), are truthful and non-deceptive in all material respects, to the Knowledge of the Company adequately substantiated, and otherwise in material compliance with all applicable Laws. (d) No Owned Intellectual Property is subject to any contract containing any covenant or other provision that in any way limits or restricts the ability of the Company Entities to use, exploit, assert or enforce any Owned Intellectual Property. (e) The Company Entities have not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned or used by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third party. (f) All past and present employees and consultants and contractors of the Company have entered into valid and binding written contracts with the Company sufficient to vest title in the Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by the Company and to maintain the confidentiality of the Company’s confidential information and the Company Trade Secrets. The Company has made reasonable measures to protect and maintain (i) the proprietary nature of each item of Owned Intellectual Property and (ii) the confidentiality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets exist. (g) Except as identified in Section 4.18(g) of the Disclosure Schedule, (i) the Company Entities are in compliance with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft or data or security breach relating to any Company Entity’s data or (B) material unintended, illegal or improper use or disclosure of, or access to, any personal information in the custody or control of any Company Entity. (h) All required filings and fees related to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity or, to the Knowledge of the Company, any Affiliate of any officer, director, manager, stockholder or member of any Company Entity, on the other hand, except for employment Contracts or relationships, the provision of compensation and benefits to officers, directors, managers or Employees of the Company Entities and powers of attorney and similar grants of authority, in each case, made or entered into by any Company Entity in the ordinary course of business.
Appears in 1 contract
Intellectual Property and Data Privacy. (a) Section 4.18(a5.17(a) of the Parent Disclosure Schedule identifiescontains a complete and accurate list, as of the date Execution Date, of this Agreement, all Parent Owned Intellectual Property that is (i) Owned Intellectual Property subject to an application or registration with a Governmental Entity Registered (by namecollectively, owner and, where applicable, registration or application number and jurisdiction) (the “Registered IPParent Owned Intellectual Property”), ) or (ii) material trade secrets proprietary Software.
(as such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839b) and included in the All Registered Parent Owned Intellectual Property (currently used in the “Company Trade Secrets”)business of the Parent is subsisting and, to the Knowledge of the Parent, valid and (iii) all other enforceable. No Registered Parent Owned Intellectual Property owned is subject to any outstanding order, judgment or decree issued by a third party that is licensed Governmental Body restricting the use by the Parent, or adversely affecting the validity or enforceability of, any such Registered Parent Owned Intellectual Property.
(c) The Parent owns all right, title and interest in and to, or otherwise possesses valid licenses or other rights to the Company Entities that is material to use, all Intellectual Property Rights necessary for the operation of the business of the Company EntitiesParent as presently conducted or as contemplated to be conducted, excluding free and clear of all Liens (other than Permitted Liens). The consummation of the Transactions will not alter or impair the ownership or right of the Parent to use any such Intellectual Property Rights or any component thereof.
(d) The operation of the business of the Parent, as currently conducted, does not infringe upon, misappropriate, or otherwise violate any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP and Company Trade Secrets, the “Scheduled IP”). Each item Rights of Registered IP is valid and subsisting (other than applications).
(b) Except as identified in Section 4.18(b) of the Disclosure Schedule, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business as currently conducted.
(c) Except as identified in Section 4.18(c) of the Disclosure Schedule, (i) no Company Entity is currently infringing any Intellectual Property owned by any third party that is not licensed to the Company Entities, andparty. There are no unresolved and pending or, to the Knowledge of the CompanyParent, no threatened actions or claims, in each case, that allege that the Parent has infringed, misappropriated, or otherwise violated the Intellectual Property Rights of any third party is currently infringing in party, or that any material respect any of the Parent Owned Intellectual Property. All claims made Property is invalid, unenforceable, not owned or not owned exclusively by the Company Entities in connection with an application for marketing approval from a Governmental Entity, or Parent. Except as set forth on or in connection with Section 5.17(d) of the advertising, offering for sale or sale of products or services by the Company Entities (including labels, packaging and other communications), are truthful and non-deceptive in all material respectsParent Disclosure Schedule, to the Knowledge of the Company adequately substantiatedParent, and no third party is infringing, misappropriating or otherwise in material compliance with all applicable Laws.
(d) No Owned Intellectual Property is subject to violating any contract containing any covenant or other provision that in any way limits or restricts the ability of the Company Entities to use, exploit, assert or enforce any Parent Owned Intellectual Property.
(e) The Company Entities have not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any No Parent Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned subject to any outstanding court order or used decree by a Governmental Body restricting the use, sale, or exploitation thereof by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third partyParent.
(f) All past The Parent has maintained commercially reasonable practices to protect the confidentiality of the trade secrets and present Software source code included in the Parent Owned Intellectual Property and have required all employees and consultants and contractors of the Company have entered into valid and binding written other Persons with access to such trade secrets or source code to execute contracts with the Company sufficient to vest title in the Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by the Company and requiring them to maintain the confidentiality of the Company’s confidential any such information and to use such information only for the Company Trade Secretsbenefit of the Parent and the Parent’s customers.
(g) All current and former employees who contributed to the development of any Intellectual Property Rights that are material to the business of the Parent and owned or purported to be owned by the Parent have executed contracts that presently assign to the Parent all of such Person’s interest in such Intellectual Property Rights, or a similar assignment of rights has occurred by operation of Law.
(h) The Parent IT Systems are adequate, in all material respects, for the current requirements of the business of the Parent as currently conducted, including in terms of functionality, capacity, and performance. The Company Parent IT Systems have not, for the three-year period preceding the Execution Date, experienced a failure, virus, bug, breakdown, malfunction or breach, in each case, which has made (i) caused material disruption or interruption to the use by the Parent or the Parent’s customers of the Parent IT Systems, or (ii) resulted in any unauthorized disclosure of or access to any data owned, collected or controlled by the Parent or Parent’s customers. The Parent has taken commercially reasonable steps to provide for the backup and recovery of data and information, have commercially reasonable disaster recovery plans, procedures and facilities, and, as applicable, have taken commercially reasonable steps to implement such plans and procedures. To the Knowledge of the Parent, the Parent IT Systems do not contain any Malicious Code designed to permit (x) unauthorized access to a computer or network, (y) unauthorized disablement or erasure of software, hardware, or data, or (z) any other similar type of unauthorized activities. The Parent has taken commercially reasonable technical, administrative, and physical measures to protect the integrity and maintain security of the Parent IT Systems from unauthorized use, access, or modification by third parties.
(i) The Software owned by the Parent is not distributed to any third party with any Open Source Software in a manner that requires (i) the proprietary nature disclosure to any Person of any source code of any such Software or (ii) the licensing of any such source code for the purpose of making derivative works.
(j) All Parent IT Systems owned or controlled or operated by the Parent for the benefit of its customers (collectively, the “Parent Hosting Computer Systems”) are in good working order and condition in all material respects. The Parent lawfully owns, leases, or licenses all Parent Hosting Computer Systems that are used in the operations of the business of the Parent as of the date of this Agreement. The Parent maintains reasonable and appropriate administrative, physical and technical security controls for the Parent Hosting Computer Systems that are designed to safeguard the Parent Hosting Computer Systems against the risk of business disruption arising from attacks (including virus, exploit and denial-of-service attacks) by, or unauthorized activities of, any employee or contractor of the Parent or any other Person. To the Knowledge of the Parent, in the three-year period preceding the Execution Date, there has been no successful unauthorized incidents of access, use, disclosure, modification or destruction of Personal Information on the Parent Hosting Computer Systems or any Security Breach with respect to the Parent Hosting Computer Systems that required notice to any third party. In the three-year period preceding the Execution Date, there has been no failure or malfunction of any Parent Hosting Computer System, in each item case which has caused a material disruption to the business operations of Owned Intellectual Property the Parent. The Parent is not in material breach of any of its contracts or licenses relating to Parent Hosting Computer Systems.
(k) The use of the Parent Data by the Parent does not infringe or violate the rights of any person or otherwise violate any Law. The Parent has collected, stored, and processed Personal Information from distributors, resellers, partners or customers in accordance with all Privacy and Security Laws and such Personal Information can be used by the Parent after the Closing in substantially the same manner presently used. The Parent does not transmit any Personal Information or other non-public Parent Data of its distributors, resellers, partners, or end users across country borders, unless permitted by and in accordance with Privacy and Security Laws. The Parent does not provide, nor has it been legally required to provide in the three) year period preceding the Execution Date, any notice to Parent Data owners in connection with any unauthorized access to, or use or disclosure of Personal Information.
(l) The Parent complies, and has at all times in the three-year period preceding the Execution Date, complied in all material respects with (i) all Privacy and Security Laws, (ii) all Privacy Policies of the Parent, and (iii) its contractual obligations with respect to the Processing of Personal Information (collectively, the “Parent Privacy Commitments”). To the extent required by applicable Parent Privacy Commitments, Personal Information is Processed by the Parent in an encrypted manner. The Parent has at all times in the three-year period preceding the Execution Date, presented or otherwise made available a Privacy Policy of the Parent to individuals prior to the collection of any Personal Information, and all such Privacy Policies are and have been accurate, consistent and complete and not misleading or deceptive (including by omission). With respect to Personal Information collected by or on behalf of the Parent, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not violate any Parent Privacy Commitments or require the consent of any Person concerning such Person’s Personal Information. In the three year period preceding the Execution Date, the Parent has entered into contracts with all of its Data Partners which comply in all material respects with Privacy and Security Laws, and to the Knowledge of the Parent, its Data Partners have at all times during and pursuant to their contractual engagement by the Parent, complied with the requirements of Privacy and Security Laws, including with respect to protection of Personal Information in a manner consistent with the Parent Privacy Commitments.
(m) In the three-year period preceding the Execution Date, (i) The Parent has implemented and maintained, at a minimum, reasonable security measures, including a written and comprehensive information security program, designed to: (A) protect and maintain the security of any Personal Information and to protect such Personal Information against any Security Breach, and (B) identify and address risks relating to Personal Information in their possession or control, and (ii) the confidentiality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets exist.
(g) Except as identified in Section 4.18(g) of the Disclosure Schedule, (i) the Company Entities are in compliance with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft or data or security breach relating to any Company Entity’s data or (B) material unintended, illegal or improper use or disclosure of, or access to, any personal information in the custody or control of any Company Entity.
(h) All required filings and fees related to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity orParent and, to the Knowledge of the CompanyParent, each of its Data Partners (with respect to Personal Information Processed by or on behalf of the Parent), has not (A) experienced any Affiliate Security Breach, (B) been required pursuant to any Privacy and Security Law to notify any customer, consumer, employee, Governmental Body, or other Person of any officerSecurity Breach, director, manager, stockholder or member (C) been the subject of any Company Entityinquiry, on investigation or enforcement action of any Governmental Body with respect to compliance with any Privacy and Security Law, or (D) received any notice, request, claim, complaint, correspondence or other communication from any Governmental Body or owner of any Personal Information relating to any Security Breach or violation of any Privacy and Security Laws. Neither the other hand, except for employment Contracts Parent nor any third-party acting at the direction or relationships, the provision of compensation and benefits to officers, directors, managers or Employees authorization of the Company Entities and powers Parent, has paid any perpetrator of attorney and similar grants of authorityany actual or threatened Security Breach or cyberattack, in each case, made including a ransomware attack or entered into by any Company Entity in the ordinary course of businessa denial-of-service attack.
Appears in 1 contract
Samples: Merger Agreement (Paltalk, Inc.)
Intellectual Property and Data Privacy. (a) Section 4.18(a3.9(a) of the Disclosure Schedule identifiescontains a complete and accurate list of all Patent Rights, as registered Trademarks, registered Copyrights, applications for each of the date of this Agreementforegoing, all Intellectual Property that is (i) Owned Intellectual Property subject domain names, and material unregistered Trademarks, in each case, owned or purported to an application or registration with be owned by a Governmental Entity (by name, owner and, where applicable, registration or application number and jurisdiction) (the “Registered IP”), (ii) material trade secrets (as such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839) and included in the Owned Intellectual Property Company (the “Company Trade SecretsRegistered Intellectual Property”), and (iii) in each case, specifying the applicable jurisdiction, title, record owner, and application, registration or issuance date and number. All necessary registration, maintenance, renewal, and other relevant filing fees due have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Governmental Entity, Self-Regulatory Organization, domain registrar or other applicable authority for the purposes of maintaining the Company Registered Intellectual Property owned by in full force and effect. All Company Registered Intellectual Property is subsisting, valid and enforceable.
(b) The Companies (i) exclusively own all right, title and interest in and to all Company Owned Intellectual Property and (ii) have valid, enforceable and continuing rights (pursuant to a third party that written license) to use all Company Licensed Intellectual Property as the same is licensed to used in the business of the Companies, in each case of (i) and (ii), free and clear of all Liens, other than Permitted Liens. The Company Owned Intellectual Property and the Company Entities that is material to Licensed Intellectual Property (when used within the operation scope of the applicable license) collectively constitute all Intellectual Property used in, necessary and sufficient for the conduct of the business of the Company Entities, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP and Company Trade Secrets, the “Scheduled IP”). Each item of Registered IP is valid and subsisting (other than applications).
(b) Except as identified in Section 4.18(b) of the Disclosure Schedule, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business Companies as currently conducted.
(c) Except as identified in Section 4.18(c) Neither the execution and delivery of this Agreement nor the consummation of the Disclosure Schedule, transactions contemplated hereby (either alone or in combination with any other event) will result in: (i) the loss or impairment of, or any Lien on, any Company Intellectual Property; (ii) the release, disclosure or delivery of any source code included in any Company Software to any third party; (iii) the grant, assignment or transfer to any other Person of any license or other right or interest under, to or in any Company Intellectual Property; or (iv) the payment of any additional consideration to, or the reduction of any payments from, any Person with respect to any Company Intellectual Property.
(d) To the Seller’s Knowledge, no third party is infringing, misappropriating, or otherwise violating or has infringed, misappropriated, or otherwise violated any Company Entity Intellectual Property, and no such claims have been made against any Person by the Companies (or any Person on the Companies’ behalf).
(e) The Companies have taken adequate measures to maintain in confidence all trade secrets and confidential information comprising a part of the Company Intellectual Property or otherwise pertaining to the Companies or the business of the Companies (including confidential trading information and other trade secrets and confidential information of any Person to whom a Company has a confidentiality obligation), which measures are reasonable in the industry in which the Companies operate. No trade secret or confidential information material to a Company has been authorized to be disclosed or has been actually disclosed by a Company to any Person, other than pursuant to a valid and enforceable written non-disclosure agreement restricting the disclosure and use of such information. To the Seller’s Knowledge, no such Person is currently infringing in violation of any such agreement or has otherwise misappropriated any such information. No source code for any Company Software has been delivered, licensed or made available by a Company to, or accessed by, any escrow agent or other Person, other than employees or contractors subject to written non-disclosure agreements restricting the disclosure and use of such source code. Neither Company is a party to any source code escrow agreement or otherwise obligated to provide to any Person (or escrow agent for the benefit of any Person) the source code for any Company Software.
(f) The Companies and the conduct and operation of the business of the Companies (including the creation, licensing, marketing, importation, offering for sale, sale, or use of the products and services of the business of the Companies) do not infringe, dilute, misappropriate, or otherwise violate, and have not, since January 1, 2020, infringed, diluted, misappropriated, or otherwise violated, any Intellectual Property owned of any third party. There is no action, suit, proceeding, claim, arbitration or investigation pending or, to the Seller’s Knowledge, threatened against a Company, or, to the Seller’s Knowledge, pending or threatened against any other Person who may be entitled to be indemnified, defended, held harmless, or reimbursed by a Company (a) involving allegations of infringement, dilution, misappropriation, or other violation of any Intellectual Property of any third party that is not licensed to or (b) challenging the ownership, use, validity or enforceability of any Company EntitiesIntellectual Property. Since, January 1, 2020, neither Company has received any written claim or notice alleging any such infringement, dilution, misappropriation, or violation or challenging any such ownership, use, validity, or enforceability, and, to the Knowledge of Seller’s Knowledge, there are no facts or circumstances that would reasonably form the Company, no third party is currently infringing in basis for any material respect any Owned Intellectual Property. All claims made by the Company Entities in connection with an application for marketing approval from a Governmental Entity, such claim or on or in connection with the advertising, offering for sale or sale of products or services by the Company Entities (including labels, packaging and other communications), are truthful and non-deceptive in all material respects, to the Knowledge of the Company adequately substantiated, and otherwise in material compliance with all applicable Lawschallenge.
(dg) No Neither Company has received any funding from or used any facilities or personnel of any Governmental Entity or educational institution to develop the Company Owned Intellectual Property is subject in a manner that would result in the grant of any rights to any contract containing any covenant or other provision that in any way limits or restricts the ability of the Company Entities to use, exploit, assert or enforce any Owned Intellectual Property.
(eh) The Company Entities Companies have not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned or used by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms executed valid and conditions immediately after the Closing and enforceable written agreements with all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third party.
(f) All past and present employees and founders, officers, directors, employees, consultants and independent contractors pursuant to which such Persons have (i) agreed to hold all trade secrets and confidential information of the Companies in confidence both during and after their employment or retention, as applicable, and (ii) validly and presently assigned to a Company have entered into valid all of such Person’s rights, title and binding written contracts with the Company sufficient interest in and to vest title in the Company of all Intellectual Property created by such employee or consultant/contractor while employed developed for a Company in the course of their employment, service or engaged by retention thereby.
(i) The Companies own or have a valid right to access and use all the Company and IT Systems pursuant to maintain the confidentiality of the Company’s confidential information and the Company Trade Secretswritten agreements. The Company has made reasonable measures to protect and maintain IT Systems (i) are adequate for, and operate and perform in all material respects as required in connection with, the proprietary nature operation of each item the business of Owned Intellectual Property the Companies as currently conducted, and (ii) to the confidentiality Seller’s Knowledge, do not contain any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants or effects that (A) materially disrupt or materially affect in an adverse manner the functionality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company EntityIT Systems, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets exist.
(g) Except as identified in Section 4.18(g) of the Disclosure Schedule, (i) the Company Entities are in compliance with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft or data or security breach relating to any Company Entity’s data or (B) material unintendedenable or assist any Person to access without authorization any Company IT Systems. To the Seller’s Knowledge, illegal there has been no unauthorized access to or improper use breach or disclosure violation of, or access any material disruption of or data loss, service level failure, material outage or material unscheduled downtime with respect to, any personal information such Company IT Systems. The Companies (i) take and have taken reasonable measures to maintain and protect the performance, confidentiality, integrity and security of the Company IT Systems, and (ii) have reasonable back-up and disaster recovery arrangements in the custody event of a failure of the Company IT Systems.
(j) No open source software is or control has been included, incorporated or embedded in, linked to, combined, made available or distributed with, or used in the development, maintenance, operation, delivery or provision of any Company Entity.
(h) All required filings and fees related to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity or, to the Knowledge of the Company, any Affiliate of any officer, director, manager, stockholder or member of any Company Entity, on the other hand, except for employment Contracts or relationships, the provision of compensation and benefits to officers, directors, managers or Employees of the Company Entities and powers of attorney and similar grants of authoritySoftware, in each case, made in a manner that requires or entered into by obligates a Company to: (i) disclose, contribute, distribute, license or otherwise make available to any Person (including the open source community) (A) the source code for any Company Entity Software or (B) any Company Software for no or nominal charge; (ii) license any Company Software for making modifications or derivative works; or (iii) grant a license to, or refrain from asserting or enforcing any of, its Patent Rights. The Companies have complied, and are in compliance, in all material respects with the terms and conditions of all relevant licenses for open source software used in the ordinary course business of businessthe Companies.
(k) Neither Company has included in any Company Software, and, to the Seller’s Knowledge, none of the Company Software contains any “back door”, “drop dead device”, “time bomb” (as such terms are commonly understood in the software industry) or any other contaminants, or any other code designed or intended to have, or capable of performing or that without user intent will cause, any of the following functions: (i) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, any computer or other device on which such Company Software is stored, installed or used; (ii) damaging or destroying any data or file without the user’s consent; or (iii) sending information to a Company or any other Person. None of the Company Software (x) constitutes, contains or is considered “spyware” or “trackware” (as such terms are commonly understood in the software industry), (y) records a user’s actions without such user’s knowledge or (z) employs a user’s Internet connection without such user’s knowledge to gather or transmit information on such user or such user’s behavior. The Companies implement and maintain in all material respects, and have implemented and maintained in all material respects, industry standard procedures to mitigate against the likelihood that the Company Software contains any contaminant or other Software routines or hardware components designed to permit unauthorized access to or disable, erase or otherwise harm Software, hardware or data. All Company Software was created and developed solely by employees of, or independent contractors engaged by, the Companies within the scope of their employment or engagement, and all such Company Software was developed in the United States.
(l) The Companies and, to the Seller’s Knowledge, all Persons acting on behalf of each Company have at all times since January 1, 2018 complied in all material respects with (i) all applicable Privacy Laws, (ii) all of the Companies’ policies and notices regarding Personal Information, and (iii) all of the Companies’ contractual obligations with respect to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical, physical or administrative), disposal, destruction, disclosure or transfer (including cross-border) (“Processing”) of Personal Information (collectively, “Privacy Requirements”). The Companies have implemented and maintain adequate policies, procedures and systems for receiving and appropriately responding to requests from individuals concerning their Personal Information. None of the Companies’ or the Business’s privacy policies or notices have contained any material omissions or been misleading or deceptive.
(m) The Companies have (i) implemented and maintained reasonable and appropriate administrative, technical and organizational safeguards, at least consistent with practices in the industry in which the Companies operate, to protect the Company IT Systems and all Personal Information and other confidential data in their possession or control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure, including by (A) implementing, maintaining and monitoring compliance with, policies and procedures regarding the Processing of such Personal Information and (B) periodic destruction of Personal Information which no longer serves a legitimate business purpose (to the extent not prohibited by applicable Law or applicable policies or contractual commitments of the Companies or the Business) and (ii) taken reasonable steps to ensure that any third party with access to Personal Information collected by or on behalf of a Company has implemented and maintained the same, including by imposing applicable contractual obligations on such third parties to the extent required by applicable Privacy Laws or as otherwise appropriate. The Companies have conducted commercially reasonable privacy and data security testing or audits at reasonable and appropriate intervals and have resolved or remediated any privacy or data security issues or vulnerabilities identified. The Companies have implemented reasonable disaster recovery and business continuity plans, and taken actions consistent with such plans, to the extent required, to safeguard all data and Personal Information in their possession or under their control. To the Seller’s Knowledge, any third party who has provided any Personal Information to a Company has done so in compliance with applicable Privacy Laws, including providing any notice and obtaining any consent required.
(n) There have been no (and neither Company has provided or been legally required to provide (nor has Seller or any other Person provided on any Company’s behalf) notices to any Person in connection with any) material breaches, security incidents, unauthorized access to, use or disclosure of or any other adverse events or incidents related to any Personal Information (i) in the possession or under the control of a Company or relating to the Business or (ii) Processed by or on behalf of a Company. Neither Company has provided or been legally required to provide (nor has Seller or any other Person provided on any Company’s behalf) notices to any Person in connection with) any notice to any Person in connection with an unauthorized disclosure of Personal Information. Since January 1, 2018, the Companies have not received any written notice (including from third parties acting on its behalf) of any claims, charges, investigations or regulatory inquiries related to or alleging the violation of any Privacy Requirements. To the Seller’s Knowledge, there are no facts or circumstances that would reasonably be expected to form the basis of any such notice or claim.
(o) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in combination with any other event) will result in: (i) any restrictions preventing the Buyer from exploiting trade secrets, confidential information, or Processing any Personal Information of or entrusted to a Company or relating to the Business in the same manner as exploited or Processed by such Company prior to the Closing or (ii) any violations of any Privacy Requirements.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Marketaxess Holdings Inc)
Intellectual Property and Data Privacy. (a) Section 4.18(a3.17(a) of the Disclosure Schedule identifies, as of the date of this Agreementhereof, (i) all material Intellectual Property that is owned by a third party and licensed to a Company Entity and (ii) all material Intellectual Property that is (iy) Owned Intellectual Property owned by the Company Entities and (z) subject to an application or registration with a Governmental Entity (by name, owner and, where applicable, registration or application number and jurisdiction) (). The Company Entities, as applicable, are the “exclusive owners of all Registered IP”), (ii) free and clear of all Liens, other than Permitted Liens. The Registered IP is subsisting and to the extent issued or granted is, to the Knowledge of the Seller, valid or enforceable. No action, suit, or proceeding is pending or, to the Knowledge of the Seller, threatened, in which the scope, validity or enforceability of any material trade secrets (as such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839) and included in the Owned Company Intellectual Property (excluding ordinary course prosecution before an applicable Governmental Entity of pending Registered IP) is being or could reasonably be expected to be, in the “Company Trade Secrets”)case of any threatened action, and (iii) all other Intellectual Property owned by a third party that is licensed to the Company Entities that is material to the operation of the business of the Company Entities, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP and Company Trade Secrets, the “Scheduled IP”). Each item of Registered IP is valid and subsisting (other than applications)successfully contested or challenged.
(b) Except as identified in Section 4.18(b) of the Disclosure Schedule, the The Company Entities own or own, license or, have the right all material rights to use pursuant to a licenseuse, the Intellectual Property that is necessary for each Company Entity to operate its business as currently conducted. As of the Closing, the Company Entities, as applicable, will, have good title to all material Intellectual Property owned by the Seller and its Affiliates prior to the Closing, that is primarily or exclusively used, or primarily or exclusively held for use in connection with the conduct of the business of the Company Entities as conducted as of the date hereof and as contemplated to be conducted at Closing, free and clear of all Liens, other than Permitted Liens.
(c) Except as identified No Company Entity, including in Section 4.18(c) the conduct of any business of the Disclosure ScheduleCompany Entities, (i) has infringed, misappropriated or otherwise violated or does infringe, misappropriate or otherwise violate in any material respect any Intellectual Property owned by third parties and no Company Entity is currently infringing third party has infringed, misappropriated or otherwise violated or does infringe, misappropriate or otherwise violate in any material respect any Intellectual Property owned by any third party that is not licensed to the Company EntitiesEntity. There are no actions, andsuits or proceedings pending or, to the Knowledge of the CompanySeller, no threatened, by any third party is currently infringing in alleging that any material respect any Owned Intellectual Property. All claims made by of the Company Entities in connection with an application for marketing approval from a Governmental Entityinfringe, misappropriate or on or in connection with the advertising, offering for sale or sale of products or services by the Company Entities (including labels, packaging and other communications), are truthful and non-deceptive in all material respects, to the Knowledge of the Company adequately substantiated, and otherwise in material compliance with all applicable Lawsviolate any third party’s Intellectual Property.
(d) No Owned Intellectual Property is subject to any contract containing any covenant or other provision that in any way limits or restricts To the ability Knowledge of the Company Entities to useSeller, exploit, assert or enforce any Owned Intellectual Property.
(e) The Company Entities have except as would not taken any action or failed to take any action that could reasonably be expected to result have, individually or in the abandonmentaggregate, cancellationa Material Adverse Effect, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned or used by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and have at all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third party.
(f) All past and present employees and consultants and contractors of the Company have entered into valid and binding written contracts with the Company sufficient to vest title times complied in the Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by the Company and to maintain the confidentiality of the Company’s confidential information and the Company Trade Secrets. The Company has made reasonable measures to protect and maintain (i) the proprietary nature of each item of Owned Intellectual Property and (ii) the confidentiality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets exist.
(g) Except as identified in Section 4.18(g) of the Disclosure Schedule, (i) the Company Entities are in compliance respects with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses. Except as would not reasonably be expected to have, (ii) individually or in the aggregate, a Material Adverse Effect, no Proceeding is pending claim, action or proceeding has been asserted or, to the Knowledge of the Seller, threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to rights. To the Knowledge of the CompanySeller, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, in the past 12 months, there has not been, and there is no currently occurring, and has been no occurrence in the six years of, (Ai) material loss, theft or data or security breach relating to any Company Entity’s data or (Bii) material unintended, illegal or improper use or disclosure of, or access to, any personal information in the custody or control of any Company Entity.
(he) All required filings To the Knowledge of Seller, each employee and fees related independent contractor of a Company Entity who is involved in the development of material Intellectual Property did so (i) within the scope of his or her employment or engagement such that, subject to and in accordance with applicable Law, all Intellectual Property rights arising therefrom became the property of the applicable Company Entity or (ii) pursuant to one or more written agreements with provisions relating to the Registered IP have been timely submitted with protection of the applicable Company Entity’s confidential information and paid assigning ownership to the relevant Governmental Entity, and no required filings or fees related to applicable Company Entity of all Intellectual Property rights developed for the Registered IP are due applicable Company Entity within the first thirty days scope of Closing. Affiliate Transactions. There are no Contracts between the individual’s employment or among any independent contractor relationship with the Company Entity, on the one hand, and any officer, director, manager, stockholder . No such employee or member of any Company Entity orindependent contractor has, to the Knowledge of the CompanySeller, asserted or threatened in writing a claim against the Company Entities with respect to the ownership or assignment of any such Intellectual Property rights, and, to the Knowledge of the Seller, no such employee or independent contractor has a valid claim against any Company Entity with respect to the ownership or assignment of any such Intellectual Property rights. No Company Entity has granted to any Person a joint ownership interest of, or has granted or permitted any Person to retain, any Affiliate exclusive rights that remain in effect in, any Intellectual Property that is material to the conduct of any officer, director, manager, stockholder or member the respective businesses of any the Company Entity, on Entities.
(f) To the other hand, except for employment Contracts or relationshipsKnowledge of Seller, the provision of compensation and benefits to officers, directors, managers or Employees IT Systems of the Company Entities are adequate in all material respects for their intended use and powers for the conduct of attorney the respective businesses of the Company Entities as currently conducted and similar grants as currently contemplated to be conducted, and are in good working condition (normal wear and tear excepted). To the Knowledge of authoritythe Seller, the IT Systems and material Software owned by the Company Entities are free of all viruses, worms, Trojan horses and other known contaminants and do not contain any bugs, errors or problems of a nature that would materially disrupt their operation or have a material adverse impact on the operation of such IT Systems. There has not been any material malfunction with respect to any such IT Systems in the past three years that has not been remedied or replaced in all material respects.
(g) Except as set forth on Section 3.17(g) of the Disclosure Schedule, no Company Entity has (x) distributed Public Software in conjunction with the sale of any products or services, or (y) used Public Software in the development of any Company Intellectual Property. The Company Entities are in compliance with all agreements and other terms and conditions governing the use of Public Software. No Software distributed by any of the Company Entities is required to be (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge, in each case, made as a result of the use, modification or entered into by any Company Entity in the ordinary course distribution of businessPublic Software.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Remark Holdings, Inc.)
Intellectual Property and Data Privacy. (a) Section 4.18(a4.19(a) of the Company Disclosure Schedule identifiesSchedules sets forth a true, correct and complete list of all (i) patent, trademark and copyright registrations and applications for registration and (ii) domain names and social media accounts and handles, in each case ((i) and (ii)) that are Company Intellectual Property (such items, the “Company Registered Intellectual Property”). Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, each item of Company Registered Intellectual Property is subsisting and, to the knowledge of the Company, valid and enforceable. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company and its Subsidiaries own all Company Intellectual Property and otherwise possess valid and enforceable licenses or other rights 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 its Subsidiaries as currently conducted, and will continue to so own, license or have the right to use such Intellectual Property immediately following the Closing to the same extent as the date hereof, provided that the foregoing shall not be deemed a representation or warranty with respect to infringement, misappropriation or other violation of third party Intellectual Property, which is addressed exclusively in Section 4.19(b) and Section 4.19(c).
(b) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, no Proceeding is pending and since January 1, 2023 there has not been any Proceeding or any written claim or notice to or against the Company or any of its Subsidiaries (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, or has violated, misappropriated or infringed, the Intellectual Property rights of any Person.
(c) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, to the knowledge of the Company, as of the date of this Agreement, all Intellectual Property that is (i) Owned no Person is misappropriating, violating or infringing, or since January 1, 2023 has misappropriated, violated or infringed, the rights of the Company or any of its Subsidiaries with respect to any Company Intellectual Property subject to an application or registration with a Governmental Entity (by name, owner and, where applicable, registration or application number and jurisdiction) (the “Registered IP”), (ii) material trade secrets (as such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839) and included in the Owned Intellectual Property (the “Company Trade Secrets”), and (iii) all other Intellectual Property owned by a third party that is licensed to the Company Entities that is material to and its Subsidiaries and the operation of the business of the Company Entitiesand its Subsidiaries do not violate, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP misappropriate or infringe and Company Trade Secretshave not since January 1, the “Scheduled IP”). Each item of Registered IP is valid and subsisting (other than applications).
(b) Except as identified in Section 4.18(b) of the Disclosure Schedule2023 violated, the Company Entities own misappropriated or have the right to use pursuant to a licenseinfringed, the Intellectual Property that is necessary rights of any other Person. Except for each Company Entity to operate its business as currently conducted.
(c) Except as identified the representations and warranties expressly made in Section 4.18(c4.19(b) and this Section 4.19(c), the Company does not make any representation or warranty (express, implied or otherwise) with respect to the violation, misappropriation or infringement of the Disclosure Schedule, (i) no Company Entity is currently infringing any Intellectual Property owned by rights of any third party that is not licensed to the Company Entities, and, to the Knowledge of the Company, no third party is currently infringing in any material respect any Owned Intellectual Property. All claims made Person by the Company Entities in connection with an application for marketing approval from a Governmental Entity, or on or in connection with the advertising, offering for sale or sale any of products or services by the Company Entities (including labels, packaging and other communications), are truthful and non-deceptive in all material respects, to the Knowledge of the Company adequately substantiated, and otherwise in material compliance with all applicable Lawsits Subsidiaries.
(d) No Owned Intellectual Property is subject Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company and its Subsidiaries take and have taken commercially reasonable steps to prevent the unauthorized disclosure or use of their Trade Secrets and all other Trade Secrets disclosed to or possessed by them. To the knowledge of the Company, except as would not, individually or in the aggregate, have a Company Material Adverse Effect, there has been no unauthorized access, use or disclosure of any contract containing any covenant or other provision that in any way limits or restricts the ability Trade Secrets of the Company Entities or any of its Subsidiaries. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, all current and former employees and contractors who have developed or contributed to use, exploit, assert material Company Intellectual Property have executed enforceable Contracts that irrevocably assign to the Company or enforce any Owned one of its Subsidiaries all of such Person’s rights relating to such Intellectual Property, or such Intellectual Property rights have vested in the Company or one of its Subsidiaries by operation of law.
(e) The Company Entities have not taken any action Except as would not, individually or failed to take any action that could reasonably be expected to result in the abandonmentaggregate, cancellationhave a Company Material Adverse Effect, forfeitureno Software included in the Company Intellectual Property (“Company Software”) is subject to any Contract, relinquishmentincluding any source code escrow arrangement, invalidationthat requires or would require the Company or any of its Subsidiaries to divulge to any Person any source code or Trade Secret that is part of such Company Software. Except as would not, waiver individually or unenforceability in the aggregate, have a Company Material Adverse Effect, to the knowledge of the Company, neither the Company nor any of its Subsidiaries has used, modified or distributed any Open Source Software in a manner that (i) requires the disclosure, licensing or distribution of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned proprietary source code for any Company Software or used by (ii) imposes any restrictions on the consideration the Company Entities immediately prior to or any of its Subsidiaries can charge for the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment distribution of any kind to Company Software or any other third partyof their respective products or services.
(f) All past and present employees and consultants and contractors of the Company have entered into valid and binding written contracts with the Company sufficient to vest title Except as would not, individually or in the aggregate, have a Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by Material Adverse Effect, to the Company and to maintain the confidentiality knowledge of the Company’s confidential information and , neither the Company Trade Secrets. The nor any of its Subsidiaries has trained any Company has made reasonable measures to protect and maintain AI Product using Training Data that (i) the proprietary nature was obtained through an act of each item of Owned Intellectual Property and misappropriation, misrepresentation or unlawful means, or (ii) the confidentiality of included any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets existPersonal Data without adequate rights therefor.
(g) Except as identified would not, individually or in Section 4.18(g) of the Disclosure Scheduleaggregate, have a Company Material Adverse Effect, the Company and its Subsidiaries (i) lawfully own, lease or license all Systems and such Systems are reasonably sufficient for the immediate needs of the Company Entities and its Subsidiaries and (ii) will continue to have such rights immediately after the Closing to the same extent as the date hereof. Except as would not, individually or in the aggregate, to the knowledge of the Company, have a Company Material Adverse Effect, the Systems included in the Company Intellectual Property do not contain any viruses, bugs, vulnerabilities, faults, malware or other disabling code intentionally designed to (A) disrupt or adversely affect the functionality or integrity of any System, or (B) enable or assist any Person to access without authorization any System or to maliciously disable, maliciously encrypt, or erase any Software, hardware, or data. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, to the knowledge of the Company, since January 1, 2023, there has been no failure of or any security incident involving any System that has caused a disruption to the Company or any of its Subsidiaries and none have experienced any unauthorized or unlawful access to, acquisition, use, loss, modification, or any other breach of Personal Data, including, without limitation, any ransomware, phishing, or other cyberattack (“Security Breach”). Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company and its Subsidiaries have in place commercially reasonable (x) backup, data recovery and business continuity plans and (y) security measures designed to protect the Company’s Systems and any Personal Data Processed therein from a Security Breach. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, to the knowledge of the Company, as of the date of this Agreement, since January 1, 2023, the Company and its Subsidiaries have not been subjected to an audit of any kind, in connection with any Contract pursuant to which they use any third-party System, which resulted in, or requires, a true-up payment.
(h) To the knowledge of the Company, no funding, facilities or personnel of any educational institution or Governmental Entity were used, directly or indirectly, to develop or create, in whole or in part, any Company Software or other Company Intellectual Property.
(i) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company and its Subsidiaries have complied and are in compliance compliance, in all material respects, with all applicable Laws, as well as Contract obligations and their own respective rules, privacy policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal Processing of personal information collected, used or Personal Data held for use by the Company Entities or its Subsidiaries (“Privacy Obligations”).
(j) Except as would not, individually or in the conduct aggregate, have a Company Material Adverse Effect, immediately following the Closing Date the Company and its Subsidiaries have the right to the use of their respective businessesPersonal Data in substantially the same manner as Personal Data was used by them prior to the Closing Date, and such use will not violate applicable Privacy Obligations.
(iik) no Proceeding is pending Except as would not, individually or threatened in writing alleging the aggregate, have a Company Material Adverse Effect, the Company and its Subsidiaries have undertaken appropriate steps to ensure the third parties they have appointed or authorized to Process Personal Data and have contractually obligated all such third parties to (x) comply with applicable Privacy Obligations and (y) take reasonable steps to protect such Personal Data.
(l) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has received a complaint from or been the subject of any written inquiry, subpoena, investigation or enforcement action brought by any Governmental Entity or any other third party regarding its Processing of Personal Data, Security Breach or alleged violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft or data or security breach relating to any Company Entity’s data or (B) material unintended, illegal or improper use or disclosure of, or access to, any personal information in the custody or control of any Company Entityapplicable Privacy Obligation.
(h) All required filings and fees related to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity or, to the Knowledge of the Company, any Affiliate of any officer, director, manager, stockholder or member of any Company Entity, on the other hand, except for employment Contracts or relationships, the provision of compensation and benefits to officers, directors, managers or Employees of the Company Entities and powers of attorney and similar grants of authority, in each case, made or entered into by any Company Entity in the ordinary course of business.
Appears in 1 contract
Samples: Merger Agreement (Envestnet, Inc.)
Intellectual Property and Data Privacy. (a) Section 4.18(a4.9(a) of the Company Disclosure Schedule identifiesLetter sets forth, as of the date of this Agreementhereof, all Intellectual Property owned or purported to be owned by the Company or any Company Subsidiary that is (i) Owned Intellectual Property registered, issued or subject to an a pending application or registration with a Governmental Entity (by name, owner and, where applicable, for registration or application number and jurisdiction) issuance by or with any Governmental Authority or domain name registrar (the “Registered IPIntellectual Property”), (ii) material trade secrets (as including for each item of Registered Intellectual Property, the jurisdictions in which such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839) and included in the Owned Registered Intellectual Property has been issued or registered or in which any application for such issuance and registration has been filed, or in which any other filing or recordation has been made.
(the “b) The Company Trade Secrets”)or a Company Subsidiary, as applicable, owns all right, title and (iii) all other Intellectual Property owned by a third party that interest in and to, is licensed to use, or otherwise has the Company Entities that is right to use all material Intellectual Property material to and used in, or required for the operation of of, the business of the Company Entitiesand the Company Subsidiaries, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License taken as a whole (collectively with the Registered IP and Company Trade Secretscollectively, the “Scheduled IPCompany Intellectual Property”). Each item , free and clear of Registered IP is valid and subsisting (all Encumbrances other than applications).
(b) Except as identified in Section 4.18(b) of the Disclosure Schedule, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business as currently conductedPermitted Encumbrances.
(c) Except as identified in Section 4.18(c) Neither the Company nor any of the Disclosure ScheduleCompany Subsidiaries, nor the conduct of its or their business (i) no including use of the Company Entity is currently infringing any Intellectual Property owned by any third party that is not licensed to the Company Entities, and, to the Knowledge of the Company, no third party is currently infringing in any material respect any Owned Intellectual Property. All claims made by the Company Entities in connection with an application for marketing approval from a Governmental Entity, or on or and the Company Subsidiaries in connection with the advertisingoperation of their businesses) infringes upon, offering for sale misappropriates, or sale of products or services by the Company Entities (including labels, packaging and other communications), are truthful and non-deceptive in all material respects, to the Knowledge of the Company adequately substantiatedotherwise violates, and otherwise in material compliance with all applicable Laws.
(d) No Owned Intellectual Property is subject to any contract containing any covenant or other provision that in any way limits or restricts the ability of the Company Entities to usesince January 1, exploit2019 has not infringed upon, assert or enforce any Owned Intellectual Property.
(e) The Company Entities have not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned or used by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienablemisappropriated, or licensable without restriction and without payment of any kind to any other third party.
(f) All past and present employees and consultants and contractors of the Company have entered into valid and binding written contracts with the Company sufficient to vest title in the Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by the Company and to maintain the confidentiality of the Company’s confidential information and the Company Trade Secrets. The Company has made reasonable measures to protect and maintain otherwise violated (i) the proprietary nature of each item of Owned any Intellectual Property and rights (other than patents or patent applications) of a third party or (ii) the confidentiality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets exist.
(g) Except as identified in Section 4.18(g) of the Disclosure Schedule, (i) the Company Entities are in compliance with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there any rights in or to any patents or patent applications of a third party. There is no currently occurringAction initiated by any third party pending or threatened in writing against the Company or any Company Subsidiary alleging any such infringement, misappropriation, or violation.
(d) To the Knowledge of the Company, no Person is infringing or misappropriating any of the material Intellectual Property owned by the Company or any Company Subsidiary.
(e) The Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of the material Company Intellectual Property. Each current and former employee, consultant, and independent contractor of the Company and the Company Subsidiaries involved in the development of Company Intellectual Property or with access to material trade secrets or confidential information of the Company or a Company Subsidiary has entered into a written agreement with the applicable entity assigning to such entity all Intellectual Property created by such Person within the scope of such Person’s duties to such entity and prohibiting such Person from using (except as permitted for the benefit of the Company or a Company Subsidiary) or disclosing trade secrets or confidential information of the Company or a Company Subsidiary, as applicable. To the Knowledge of the Company, no current or former employee, consultant, or independent contractor of the Company or any Company Subsidiary is in violation of such agreement.
(f) The Company and each Company Subsidiary complies with, and has been no occurrence since January 1, 2019 complied with, all Data Security Requirements in all material respects. Neither the six years of, (A) execution and delivery of this Agreement nor the consummation of the Closing will result in a material loss, theft breach or data or security breach relating to any Company Entity’s data or (B) material unintended, illegal or improper use or disclosure violation of, or access toconstitute a material default under, any personal information in Data Security Requirement (other than the custody Company’s or control of any Company Entity.
(hSubsidiary’s own publicly posted policies) All required filings and fees related to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity or, to the Knowledge of the Company, any Affiliate of the Company’s or Company Subsidiary’s privacy policies. None of the representations or disclosures made or contained in any of the Company’s or Company Subsidiary’s privacy policies are materially inaccurate, misleading or deceptive. Since January 1, 2019, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole, the Company and the Company Subsidiaries have not experienced any breach of security, successful phishing incident, ransomware or malware attack, or other incident in which confidential or sensitive information, or Personal Information, was or may have been accessed, disclosed, or exfiltrated in an unauthorized manner, and since January 1, 2019, neither Company nor any Company Subsidiary has received any written notices or complaints from any Person or been the subject of any officerclaim, directorproceeding, manageror, stockholder or member to the Knowledge of any Company, investigation with respect thereto.
(g) The Company Entityand the Company Subsidiaries use commercially reasonable efforts designed to protect the confidentiality, on integrity and security of the other hand, except for employment Contracts or relationships, Computer Systems used in the provision operation of compensation and benefits to officers, directors, managers or Employees the business of the Company Entities and powers the Company Subsidiaries and designed to prevent any unauthorized use, access, interruption, or modification of attorney the Computer Systems. Such Computer Systems (i) are sufficient in all material respects for the immediate and similar grants currently anticipated future needs of authoritythe Company and the Company Subsidiaries, including as to capacity, scalability and ability to process current and anticipated peak volumes in each casea timely manner, made and (ii) are in sufficiently good working condition to effectively perform all material information technology operations of the Company and the Company Subsidiaries and include a sufficient number of license seats for all software as necessary for the operation of the business of the Company and the Company Subsidiaries. Since January 1, 2019, there have been no unauthorized intrusions, failures, breakdowns, continued substandard performance, or entered into by other adverse events affecting any Company Entity such Computer Systems that have caused any substantial disruption of or substantial interruption in or to the ordinary course use of businesssuch Computer Systems.
Appears in 1 contract
Intellectual Property and Data Privacy. (a) Section 4.18(a4.21(a) of the Company Disclosure Schedule identifiescontains a complete and accurate list, as of the date Execution Date hereof, of this Agreement, all Company Owned Intellectual Property that is (i) Owned Intellectual Property subject to an application or registration with a Governmental Entity Registered (by namecollectively, owner and, where applicable, registration or application number and jurisdiction) (the “Registered IPCompany Owned Intellectual Property”), ) or (ii) material trade secrets proprietary Software.
(as such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839b) and included in the All Registered Company Owned Intellectual Property (currently used in the “business of the Company Trade Secrets”)is subsisting and, to the Knowledge of the Company or Newtek, valid and (iii) all other enforceable. No Registered Company Owned Intellectual Property owned is subject to any outstanding order, judgment or decree issued by a third party that is licensed Governmental Body restricting the use by the Company, or adversely affecting the validity or enforceability of, any such Registered Company Owned Intellectual Property.
(c) The Company owns all right, title and interest in and to, or otherwise possess valid licenses or other rights to the Company Entities that is material to use, all Intellectual Property Rights necessary for the operation of the business of the Company Entitiesas presently conducted or as contemplated to be conducted, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP free and Company Trade Secrets, the “Scheduled IP”). Each item clear of Registered IP is valid and subsisting all Liens (other than applicationsPermitted Liens). The consummation of the Transactions will not alter or impair the ownership or right of the Company to use any such Intellectual Property Rights or any component thereof.
(bd) Except as identified in Section 4.18(b) The operation of the Disclosure Schedule, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business as currently conducted.
(c) Except as identified in Section 4.18(c) of the Disclosure Schedule, (i) no Company Entity is currently infringing any Intellectual Property owned by any third party that is not licensed to the Company Entities, and, to the Knowledge of the Company, no third party is as currently infringing in any material respect any Owned Intellectual Property. All claims made by the Company Entities in connection with an application for marketing approval from a Governmental Entityconducted, does not infringe upon, misappropriate, or on or in connection with the advertising, offering for sale or sale otherwise violate any Intellectual Property Rights of products or services by the Company Entities (including labels, packaging any third party. There are no unresolved and other communications), are truthful and non-deceptive in all material respectspending or, to the Knowledge of the Company adequately substantiatedor Newtek, and threatened actions or claims, in each case, that allege that the Company has infringed, misappropriated, or otherwise in material compliance with all applicable Laws.
(d) No violated the Intellectual Property Rights of any third party, or that any of the Company Owned Intellectual Property is subject to any contract containing any covenant invalid, unenforceable, not owned or other provision that in any way limits or restricts not owned exclusively by the ability Company. To the Knowledge of the Company Entities to useor Newtek, exploitno third party is infringing, assert misappropriating or enforce otherwise violating any Company Owned Intellectual Property.
(e) The No Company Entities have not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned subject to any outstanding court order or used decree by a Governmental Body restricting the use, sale, or exploitation thereof by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third partyCompany.
(f) All past and present employees and consultants and contractors The Company has maintained commercially reasonable practices to protect the confidentiality of the Company have entered into valid trade secrets and binding written contracts with the Company sufficient to vest title Software source code included in the Company of all Owned Intellectual Property created by and has required all employees and other Persons with access to such employee trade secrets or consultant/contractor while employed or engaged by the Company and source code to execute contracts requiring them to maintain the confidentiality of any such information and to use such information only for the benefit of the Company and the Company’s confidential information and the Company Trade Secrets. The Company has made reasonable measures to protect and maintain (i) the proprietary nature of each item of Owned Intellectual Property and (ii) the confidentiality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets existcustomers.
(g) Except as identified in Section 4.18(g) All current and former employees who contributed to the development of any Intellectual Property Rights that are material to the business of the Disclosure ScheduleCompany and owned or purported to be owned by the Company have executed contracts that presently assign to the Company all of such Person’s interest in such Intellectual Property Rights, or a similar assignment of rights has occurred by operation of Law.
(h) The Company IT Systems are adequate, in all material respects, for the current requirements of the business of the Company as currently conducted, including in terms of functionality, capacity, and performance. The Company IT Systems have not, for the three-year period preceding the Execution Date, experienced a failure, virus, bug, breakdown, malfunction or breach, in each case, which has (i) caused material disruption or interruption to the use by the Company or the Company’s customers of the Company IT Systems, or (ii) resulted in any unauthorized disclosure of or access to any data owned, collected or controlled by the Company or the Company’s customers. The Company has taken commercially reasonable steps to provide for the backup and recovery of data and information, have commercially reasonable disaster recovery plans, procedures and facilities, and, as applicable, have taken commercially reasonable steps to implement such plans and procedures. To the Knowledge of the Company or Newtek, the Company IT Systems do not contain any Malicious Code designed to permit (i) unauthorized access to a computer or network, (ii) unauthorized disablement or erasure of software, hardware, or data, or (iii) any other similar type of unauthorized activities. The Company has taken commercially reasonable technical, administrative, and physical measures to protect the integrity and security of the Company IT Systems from unauthorized use, access, or modification by third parties.
(i) The Software owned by the Company is not distributed to any third party with any Open Source Software in a manner that requires (i) the disclosure to any Person of any source code of any such Software or (ii) the licensing of any such source code for the purpose of making derivative works.
(j) All Company IT Systems owned or controlled or operated by the Company for the benefit of its customers (collectively, the “Company Hosting Computer Systems”) are in good working order and condition in all material respects. The Company lawfully owns, leases, or licenses all Company Hosting Computer Systems that are used in the operations of the business of the Company as of the date of this Agreement. The Company maintains reasonable and appropriate administrative, physical and technical security controls for the Company Hosting Computer Systems that are designed to safeguard the Company Hosting Computer Systems against the risk of business disruption arising from attacks (including virus, exploit and denial-of-service attacks) by, or unauthorized activities of, any employee or contractor of the Company or any other Person. To the Knowledge of the Company or Newtek, in the three-year period preceding the Execution Date there has been no successful unauthorized incidents of access, use, disclosure, modification or destruction of Personal Information on the Company Hosting Computer Systems or any Security Breach with respect to the Company Hosting Computer Systems that required notice to any third party. In the three-year period preceding the Execution Date, there have been no failure or malfunction of any Company Hosting Computer System, in each case which has caused a material disruption to the business operations of the Company. The Company is not in material breach of any of its contracts or licenses relating to Company Hosting Computer Systems.
(k) The use of the Company Data by the Company does not infringe or violate the rights of any person or otherwise violate any Law in any material respect. The Company has collected, stored, and processed Personal Information from distributors, resellers, partners or customers in accordance with all Privacy and Security Laws in all material respects and such Personal Information can be used by the Company after the Closing in substantially the same manner presently used. The Company does not transmit any Personal Information or other non-public Company Data of its distributors, resellers, partners, or end users across country borders, unless permitted by and in accordance with Privacy and Security Laws. The Company does not provide, nor has it been legally required to provide in the three year period preceding the Execution Date, any notice to Company Data owners in connection with any unauthorized access to, use or disclosure of Personal Information.
(l) The Company complies, and has at all times in the three-year period preceding the Execution Date, complied in all material respects with (i) all Privacy and Security Laws, (ii) all Privacy Policies of the Company, and (iii) its contractual obligations with respect to the Processing of Personal Information (collectively, “Company Privacy Commitments”). To the extent required by applicable Company Privacy Commitments, Personal Information is Processed by the Company in an encrypted manner. The Company has at all times in the three-year period preceding the Execution Date presented or otherwise made available a Privacy Policy of the Company to individuals prior to the collection of any Personal Information, and all such Privacy Policies are and have been accurate, consistent and complete and not misleading or deceptive (including by omission). With respect to Personal Information collected by or on behalf of the Company, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not violate any Company Privacy Commitments or require the consent of any Person concerning such Person’s Personal Information. In the three year period preceding the Execution Date, the Company has entered into contracts with all of its Data Partners which comply in all material respects with Privacy and Security Laws, and to the Knowledge of the Company or Newtek, its Data Partners have at all such times during and pursuant to their contractual engagement by the Company, complied with the requirements of Privacy and Security Laws, including with respect to protection of Personal Information in a manner consistent with the Company Privacy Commitments.
(m) In the three-year period preceding the Execution Date, (i) the Company Entities are in compliance with all applicable Lawshas implemented and maintained, as well as their respective rulesat a minimum, policies reasonable security measures, including a written and procedurescomprehensive information security program, designed to: (A) protect and maintain the security of any Personal Information and to protect such Personal Information against any Security Breach, and (B) identify and address risks relating to privacy, data protection, Personal Information in their possession or control; and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft or data or security breach relating to any Company Entity’s data or (B) material unintended, illegal or improper use or disclosure of, or access to, any personal information in the custody or control of any Company Entity.
(h) All required filings and fees related to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity orand, to the Knowledge of the Company or Newtek, each of its Data Partners (with respect to Personal Information Processed by or on behalf of the Company), has not (A) experienced any Security Breach impacting the Company, (B) been required pursuant to any Affiliate Privacy and Security Law to notify any customer, consumer, employee, Governmental Body, or other Person of any officerSecurity Breach or voluntarily elected to give any such notice, director, manager, stockholder or member (C) been the subject of any inquiry, investigation or enforcement action of any Governmental Body with respect to compliance with any Privacy and Security Law, or (D) received any notice, request, claim, complaint, correspondence or other communication from any Governmental Body or owner of any Personal Information relating to any Security Breach or violation of any Privacy and Security Laws. Neither the Company Entity, on nor any third-party acting at the other hand, except for employment Contracts direction or relationships, the provision of compensation and benefits to officers, directors, managers or Employees authorization of the Company Entities and powers Company, has paid any perpetrator of attorney and similar grants of authorityany actual or threatened Security Breach or cyberattack, in each case, made including a ransomware attack or entered into by any Company Entity in the ordinary course of businessa denial-of-service attack.
Appears in 1 contract
Samples: Merger Agreement (Paltalk, Inc.)
Intellectual Property and Data Privacy. (a) Section 4.18(aSchedule 3.16(a) sets forth a list of the Disclosure Schedule identifies, as of the date of this Agreement, all Intellectual Property that is (i) registrations and applications for registration of Owned Intellectual Property subject to an application or registration with a Governmental Entity (by name“Company Registered Intellectual Property”) including, owner andfor each item listed, where applicablethe record owner, registration jurisdiction, and issuance, registration, or application number and jurisdiction) (the “Registered IP”)date, as applicable, of such item and (ii) material trade secrets (as such term is defined Company Software. All registrations set forth on Schedule 3.16(a) are valid and in the Defend Trade Secrets Act, 18 U.S.C. § 1839) and included in the Owned Intellectual Property (the “Company Trade Secrets”)force, and (iiienforceable, and all applications set forth on Schedule 3.16(a) all other Intellectual Property owned by a third party that is licensed to the Company Entities that is material to the operation of the business of the Company Entities, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP are pending and Company Trade Secrets, the “Scheduled IP”). Each item of Registered IP is valid and subsisting (other than applications)in good standing.
(b) Except as identified in Section 4.18(b) of the Disclosure Schedule, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business as currently conducted.
(c) Except as identified in Section 4.18(c) of the Disclosure Schedule, (i) no Company Entity is currently infringing any Intellectual Property owned by any third party that is not licensed to the Company Entities, and, to the Knowledge of the Company, no third party is currently infringing in any material respect any All Owned Intellectual Property. All claims made , including all Company Registered Intellectual Property, is (and following the Closing will be) fully transferable, alienable or licensable by the Company Entities in connection with an application for marketing approval from a Governmental Entityand, or on or in connection with immediately following the advertisingClosing, offering for sale or sale Purchaser free and clear of products or services by the Company Entities all Liens (including labels, packaging other than Permitted Liens) and other communications), are truthful and non-deceptive in all material respects, to the Knowledge of the Company adequately substantiated, and otherwise in material compliance with all applicable Laws.
(d) No Owned Intellectual Property is subject to any contract containing any covenant or other provision that in any way limits or restricts the ability of the Company Entities to use, exploit, assert or enforce any Owned Intellectual Property.
(e) The Company Entities have not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned or used by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third party. The Company exclusively owns all right, title and interest to all Owned Intellectual Property, including all Company Registered Intellectual Property, free and clear of any Liens.
(fc) All past The Company owns or has a valid right to use in the manner currently used, all Intellectual Property and present employees and consultants and contractors technology necessary for the conduct of the business of the Company have entered into as currently conducted (the “Company Intellectual Property”). No current or former employee, contractor, or consultant of the Company owns any rights in or to any Owned Intellectual Property including rights to receive payment. The Company has, and enforces, a policy requiring each current and former employee, contractor, or consultant to execute a valid and binding written contracts with the Company enforceable proprietary information, confidentiality and assignment agreement sufficient to vest title in the Company of all irrevocably assign any Intellectual Property created developed by such employee or consultant/contractor while employed or engaged by for the Company and or an Affiliate to maintain the confidentiality Company or Affiliate. No government funding or facilities of any university, college, or other educational institution or research center was used in the development of any Owned Intellectual Property. No current or former employee, consultant or independent contractor of the Company’s confidential information and Company who was involved in, or who contributed to, the Company Trade Secrets. The Company has made reasonable measures to protect and maintain (i) the proprietary nature creation or development of each item of any Owned Intellectual Property and (ii) Property, has performed services for the confidentiality of any Company Trade Secrets. No Company Trade Secrets government, a university, college or other material confidential information of any Company Entityeducational institution, or a research center, during a period of time during which such employee, consultant or independent contractor was also performing services for the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets existCompany.
(gd) Except as identified in Section 4.18(g) of the Disclosure Schedule, (i) the Company Entities are in compliance with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to To the Knowledge of the Company, there are no legal opinions to the effect that any of the subject matters of the Owned Intellectual Property may be or are invalid or unenforceable, or official actions or other notices from any Governmental Authority that any of the subject matters or claims of pending applications for registration constituting any of such Owned Intellectual Property are unregistrable. No Owned Intellectual Property or Company Product is no currently occurringsubject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by the Company or may affect the validity, use or enforceability of such Owned Intellectual Property.
(e) Except as set forth on Schedule 3.16(e), since January 1, 2020, the operation of the Company, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture and sale of any Company Product has been no occurrence in not and does not infringe upon, misappropriate, or violate any Intellectual Property of any Person. Since January 1, 2020, the six years of, Company has not received any written notice from any Person: (A) alleging that the conduct of the business of the Company as currently conducted infringes, constitutes a misappropriation of or violates any Intellectual Property of any Person in any material loss, theft or data or security breach relating to any Company Entity’s data respect; or (B) material unintendedchallenging the ownership by the Company of or the validity or enforceability of any Owned Intellectual Property.
(f) To the Company’s Knowledge, illegal or improper use or disclosure ofsince January 1, 2020, no other Person has infringed, misappropriated, or access toviolated, in any material respect, any personal information Owned Intellectual Property. Except as disclosed on Schedule 3.16(f), since January 1, 2020, the Company has not sent any charge, complaint, claim, demand, or notice alleging interference, infringement, dilution, misappropriation, or violation of any Owned Intellectual Property. The Company has the exclusive right to bring actions against any Person that is infringing any Owned Intellectual Property and to retain for themselves any damages recovered in any such action.
(g) The Transactions are not reasonably expected to and will not, individually or in the custody or control aggregate, solely as a result of any Contract that Company Entityhas entered into: (i) negatively impact the Company’s legal right and ability to continue using the Company Intellectual Property (except with respect to Retained Marks, which are subject to the terms in Section 7.5) immediately after the Closing to the same extent as the Company Intellectual Property is used immediately prior to the Closing; (ii) result in Purchaser or any of its Affiliates granting to any third party any right to or with respect to any Intellectual Property owned by or licensed to any of them; (iii) result in Purchaser or any of its Affiliates being bound by or subject to any non-compete or other material restriction on the operation or scope of their respective businesses; or (iv) Purchaser, or any of its Affiliates being obligated to pay any royalties or other material amounts.
(h) All The Company is not a member of, and has not actively participated in, any organization, body or group which is engaged in or which has, or is in the process of, setting, establishing or promulgating any industry or product standards or the terms under which Intellectual Property is required filings to be licensed; and fees related none of the Company Products practice, or require a license with respect to any industry standards.
(i) The Company has not used any Copyleft Software that requires, as a condition of use, modification or distribution of such Copyleft Software or that the Registered IP have been timely submitted Company’s Products, the Owned Intellectual Property, or other Software incorporated into, derived from or distributed with and paid such Copyleft Software be (i) disclosed or distributed in source code form, (ii) be licensed for the purpose of making derivative works, or (iii) be redistributable at no charge or with any restriction on the consideration charged therefor.
(j) Neither the Company, nor any other Person acting on its behalf has disclosed, delivered or licensed to any Person, agreed to disclose, deliver or license to any Person, or permitted the relevant Governmental Entitydisclosure or delivery to any escrow agent or other Person of, any source code that is Owned Intellectual Property, other than disclosures to employees, consultants or independent contractors of the Company bound by a confidentiality agreement including customary confidentiality terms sufficient to protect the proprietary interests of the Company. No event has occurred, and no required filings circumstance or fees related condition exists, that (with or without notice or lapse of time, or both) would reasonably be expected to, result in the disclosure or delivery by the Company or any Person acting on its behalf to the Registered IP are due within the first thirty days any Person of Closing. Affiliate Transactionsany source code that is Owned Intellectual Property. There are no Contracts between pursuant to which (i) the Company has deposited, or among is or may be required to deposit, with an escrow agent or any other Person, any source code that is Owned Intellectual Property, or (ii) execution of this Agreement or any of the other transactions contemplated by this Agreement, could result in the release from escrow of any source code that is Owned Intellectual Property.
(k) All Company EntityProducts and Owned Intellectual Property (and all parts thereof) are free of any disabling codes or instructions, timer, copy protection device, clock, counter or other limiting design or routing and any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components that permit unauthorized access or the unauthorized disablement or erasure of such Company Product (or all parts thereof) or data or other software of users or otherwise cause them to be incapable of being used in the full manner for which they were designed.
(l) Except as set forth on Schedule 3.16(l), the one handCompany is, and has at all times during the five years prior to the Agreement Date been, in compliance in all material respects with all Privacy and Data Processing Requirements. The Company has, and at all applicable times has had, all rights, consents, and authorizations to Process Company Data as Processed by or for the Company. There is no, and has been no, breach, security incident, or successful ransomware, denial of access attack, denial of service attack, hacking, or similar event with respect to any officerSystem, directornor any accidental, managerunlawful, stockholder or member unauthorized access to, or other Processing of, Company Data, and no circumstance has arisen that would require notification to any Governmental Authority or other Person of any Company Entity orof the foregoing under applicable Privacy and Data Processing Requirements. There is no, and has been no, complaint or Action from any Governmental Authority or other Person against or to the Knowledge Company (i) relating to the Processing of Company Data, privacy, data protection, or security, (ii) alleging noncompliance with any applicable Privacy and Data Processing Requirement, or (iii) relating to the confidentiality, availability, or integrity of any System or Company Data. Neither the execution, delivery, or performance of this Agreement or any of the other agreements contemplated by this Agreement, nor the consummation of the Transactions, will violate in any material respect any applicable Privacy and Data Processing Requirement.
(m) The Company has at all times during the three years prior to the Agreement Date maintained a reasonable and appropriate information security program that includes safeguards designed to protect the security, confidentiality, and integrity of the Systems and Company Data in the Company’s possession or control. The Company has resolved or remediated any material privacy, data protection, or security issues or vulnerabilities identified by or to the Company. The Company’s information technology systems operate and perform in a manner sufficient to conduct the business of the Company, any Affiliate of any officer, director, manager, stockholder or member of any Company Entity, on the other hand, except for employment Contracts or relationships, the provision of compensation and benefits to officers, directors, managers or Employees of the Company Entities and powers of attorney and similar grants of authority, in each case, made or entered into by any Company Entity in the ordinary course of business.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Bakkt Holdings, Inc.)
Intellectual Property and Data Privacy. (a) Section 4.18(a3.18(a) of the Company Disclosure Schedule identifiesLetter sets forth a true and complete list of all registrations and applications for trademarks, as service marks or tradenames, patents, patent applications, registered copyrights, applications to register copyrights and Internet domain names owned or purported by the Company to be owned by the Company or any of its Subsidiaries on the date of this AgreementAgreement and that are material to the businesses of the Company and its Subsidiaries taken as a whole (collectively, all Intellectual Property that is (i) Owned Intellectual Property subject to an application or registration with a Governmental Entity (by name, owner and, where applicable, registration or application number and jurisdiction) (the “Company Registered IP”). All Intellectual Property required to be disclosed in Section 3.18(a) of the Company Disclosure Letter is subsisting, (ii) material trade secrets (and to the knowledge of the Company, valid and enforceable. No Company Registered IP is involved in any interference, reissue, reexamination, opposition, cancellation or any other legal action or proceeding and, to the knowledge of the Company, no such action is or has been threatened with respect to any of the Company Registered IP. Except as such term is defined would not, individually or in the Defend Trade Secrets Actaggregate, 18 U.S.C. § 1839reasonably 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 included 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 (“Company Trade Secrets”), and (iii) all other Intellectual Property owned by a third party that is licensed to the Company Entities that is material to the operation of the business of the Company Entities, excluding or any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP and Company Trade Secrets, the “Scheduled IP”). Each item of Registered IP is valid and subsisting (other than applications).
(b) Except as identified in Section 4.18(b) of the Disclosure Schedule, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business 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 identified would not, individually or in Section 4.18(c) of the Disclosure Scheduleaggregate, reasonably be expected to have a Material Adverse Effect, (i) no the Company Entity is currently 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 owned by of any third party in connection with the conduct of their respective businesses, 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 not licensed occurring, which notice or claim remains pending or unresolved, (ii) to the Company Entities, and, to the Knowledge knowledge of the Company, no third party is currently infringing in any material respect upon, misappropriating or otherwise violating any Owned Intellectual Property. All claims made by the Company Entities in connection with an application for marketing approval from a Governmental Entity, or on or in connection with the advertising, offering for sale or sale of products or services by the Company Entities Property and (including labels, packaging and other communications), are truthful and non-deceptive in all material respects, to the Knowledge of the Company adequately substantiated, and otherwise in material compliance with all applicable Laws.
(diii) No no Owned Intellectual Property is subject to any contract containing outstanding order, judgment, decree or stipulation restricting or limiting the use or licensing thereof by the Company or any covenant of its Subsidiaries.
(d) Except as would not, individually or other provision that in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and each of its Subsidiaries takes, and has taken, commercially reasonable steps to maintain and protect the performance, confidentiality, integrity and security of all information technology, computers, computer systems and communications systems owned, operated, leased or licensed by the Company or any way limits of its Subsidiaries (collectively, the “IT Systems”) (and all software, information and data stored or restricts contained therein or transmitted thereby). The IT Systems are adequate in all material respects for the ability operation of the respective businesses of the Company Entities to and each of its Subsidiaries as currently conducted. To the knowledge of the Company, there have been no (i) security breaches or unauthorized use, exploit, assert access or enforce intrusions of any Owned Intellectual PropertyIT 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) The Company Entities have not taken any action Except as would not, individually or failed to take any action that could in the aggregate, reasonably be expected to result have a Material Adverse Effect, the Company and its Subsidiaries and, to the knowledge of the Company, any Person acting for or on behalf of the Company or its Subsidiaries have complied with (i) all applicable Privacy Laws, (ii) all of the Company’s and its Subsidiaries’ respective public facing policies and notices regarding Personal Information, and (iii) all of the Company’s and its Subsidiaries’ respective contractual obligations with respect to Personal Information. Except as would not, individually or in the abandonmentaggregate, cancellationreasonably be expected to have a Material Adverse Effect, forfeiturenone of the Company’s or its Subsidiaries’ privacy policies or notices have contained any omissions or been misleading or deceptive. Since January 1, relinquishment2018, invalidationthe Company and its Subsidiaries have (i) implemented and 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, waiver theft, misuse or unenforceability unauthorized access, use, modification, alteration, destruction or disclosure, and (ii) taken commercially reasonable steps to ensure that any third party with access to Personal Information collected by or on behalf of the Company or its Subsidiaries has implemented and maintained the same. To the knowledge of the Company, any third party who has provided Personal Information to the Company has done so in compliance with applicable Privacy Laws. In each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there have been no breaches, security incidents, misuse of or unauthorized access to or disclosure of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned Personal Information in the possession or used by control of the Company Entities immediately prior to the Closing will continue to be owned or available for use its Subsidiaries or collected, used or processed by or on behalf of the Company Entities on identical terms or its Subsidiaries and conditions immediately after neither the Closing and all such intellectual property is fully transferableCompany nor any of its Subsidiaries has provided or been legally required to provide any notices to any Person in connection with a disclosure of Personal Information. As of the date of this Agreement, alienablethe Company has not been charged with, or licensable without restriction and without payment received any written notice of any kind material claims of, or material investigations or inquires related to, the violation of any Privacy Laws, applicable privacy policies, or contractual commitments with respect to any other third partyPersonal Information.
(f) All past and present employees and consultants and contractors of the Company have entered into valid and binding written contracts with the Company sufficient to vest title As used in the Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by the Company and to maintain the confidentiality of the Company’s confidential information and the Company Trade Secrets. The Company has made reasonable measures to protect and maintain (i) the proprietary nature of each item of Owned Intellectual Property and (ii) the confidentiality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets exist.
(g) Except as identified in Section 4.18(g) of the Disclosure Schedule, (i) the Company Entities are in compliance with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft or data or security breach relating to any Company Entity’s data or (B) material unintended, illegal or improper use or disclosure of, or access to, any personal information in the custody or control of any Company Entity.
(h) All required filings and fees related to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity or, to the Knowledge of the Company, any Affiliate of any officer, director, manager, stockholder or member of any Company Entity, on the other hand, except for employment Contracts or relationships, the provision of compensation and benefits to officers, directors, managers or Employees of the Company Entities and powers of attorney and similar grants of authority, in each case, made or entered into by any Company Entity in the ordinary course of business.this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Forterra, Inc.)
Intellectual Property and Data Privacy. (a) Section 4.18(a3.14(a) of the Company Disclosure Schedule identifiessets forth a list of (i) all registrations and applications for the registration with a Governmental Authority of Intellectual Property owned by the Company (collectively, “Registered Intellectual Property”) and (ii) all domain names that are owned by the Company. All of the registrations and applications set forth on Section 3.14(a)(i) and Section 3.14(a)(ii) of the Company Disclosure Schedule are valid and in full force and effect, and have not been cancelled, expired, abandoned or otherwise terminated, and payment of all renewal and maintenance fees in respect thereof, and all filings related thereto, have been duly made. Except as set forth on Section 3.14(a)(iii) of the Company Disclosure Schedule, the Company owns and possesses all right, title and interest in and to each item of Intellectual Property owned by the Company, and has the valid and enforceable right to use all other material Intellectual Property used in, held for use in, or necessary for the Company’s Business as currently conducted, in each case free and clear of all Liens, except Permitted Liens. Except as set forth on Section 3.14(a)(iv) of the Company Disclosure Schedule, there are no annuities, payments, fees, responses to office actions or other filings required to be made and having a due date with respect to any Registered Intellectual Property or domain names within ninety (90) days after the date of this Agreement, all Intellectual Property that is (i) Owned Intellectual Property subject to an application or registration with a Governmental Entity (by name, owner and, where applicable, registration or application number and jurisdiction) (the “Registered IP”), (ii) material trade secrets (as such term is defined in the Defend Trade Secrets Act, 18 U.S.C. § 1839) and included in the Owned Intellectual Property (the “Company Trade Secrets”), and (iii) all other Intellectual Property owned by a third party that is licensed to the Company Entities that is material to the operation of the business of the Company Entities, excluding any Intellectual Property that is used pursuant to an Incidental Inbound License (collectively with the Registered IP and Company Trade Secrets, the “Scheduled IP”). Each item of Registered IP is valid and subsisting (other than applications).
(b) Except as identified set forth in Section 4.18(b3.14(b) of the Company Disclosure Schedule, (i) the Company Entities own does not, in the current operation of the Business, infringe, misappropriate, or have otherwise violate the Intellectual Property of any third party; (ii) since January 1, 2014, the Company has not received any written notice of any action asserting that any such infringement, misappropriation, or other violation has occurred; and (iii) since January 1, 2014, the Company has not received any written request or invitation to take a license under any Intellectual Property owned by any third party. There is no pending claim by any third party contesting the ownership, use or practice, right to use pursuant or practice, right to a licenseregister, registration, priority, duration, validity, or enforceability of, or alleging misuse of, the Registered Intellectual Property that is necessary or any other Intellectual Property used in or held for each Company Entity to operate its business use in the Company’s Business as currently conductedconducted (including any litigation, interference, derivation, post-grant review, inter partes review, reissue, reexamination, opposition, cancellation, or similar action), and no such claim is or has been threatened in writing since January 1, 2014.
(c) Except as identified set forth in Section 4.18(c3.14(c)(i) of the Company Disclosure Schedule, (i) no Company Entity is currently infringing any Intellectual Property owned by any third party that is not licensed to the Company Entities, and, to the Knowledge of the Company, (x) no third party is currently infringing in infringing, misappropriating or otherwise violating any material respect any Owned Intellectual Property. All claims made Property owned by the Company Entities in connection with an application for marketing approval from a Governmental Entity, or on or in connection with the advertising, offering for sale or sale of products or services by the Company Entities (including labels, packaging and other communications), are truthful and non-deceptive in all that is material respects, to the Knowledge of the Company adequately substantiated, and otherwise in material compliance with all applicable Laws.
(d) No Owned Intellectual Property is subject to any contract containing any covenant or other provision that in any way limits or restricts the ability of the Company Entities to use, exploit, assert or enforce any Owned Intellectual Property.
(e) The Company Entities have not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned or used by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third party.
(f) All past and present employees and consultants and contractors of the Company have entered into valid and binding written contracts with the Company sufficient to vest title in the Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by the Company and to maintain the confidentiality conduct of the Company’s confidential information Business and (y) the Company Trade Secrets. The Company has made reasonable measures to protect and maintain (i) the proprietary nature not delivered written notice of each item of Owned Intellectual Property and (ii) the confidentiality of a claim for any Company Trade Secrets. No Company Trade Secrets such infringement, misappropriation or other material confidential information of any Company Entityviolation to a third party since January 1, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence)2014. This subsection (f) does not constitute a warranty that any Company Trade Secrets exist.
(g) Except as identified set forth in Section 4.18(g3.14(c)(ii) of the Company Disclosure Schedule, (i) the Company Entities are in compliance with all applicable Laws, as well as their respective rules, policies and procedures, relating to privacy, data protection, and the collection, use, storage and disposal of personal information collected, used or held for use by the Company Entities in the conduct of their respective businesses, (ii) no Proceeding is pending or threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and (iii) to the Knowledge of the Company, there is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft or data or security breach relating to any Company Entity’s data or (B) material unintended, illegal or improper unauthorized use or disclosure ofof any material Company trade secret and no facts or circumstances exist that would indicate that there has been such unauthorized use or disclosure of any such Company trade secret.
(d) The Computer Systems are in good working order and operate and perform materially in accordance with their applicable specifications and as required in connection with the operation of the Business as currently conducted. The Computer Systems owned or controlled and operated by the Company are sufficient to operate the Business as currently conducted. The Company maintains reasonable and appropriate administrative, physical and technical security controls to safeguard the Computer Systems against disruption and unauthorized access or use, including employing commercially reasonable security, maintenance, disaster recovery, redundancy, backup, archiving and virus or malicious device scanning/protection measures. In the past five (5) years, there have been no material breaches of the Company’s security procedures or unauthorized access, use, disclosure, modification or destruction of any of the Computer Systems or data contained in the Computer Systems. The Company has established one or more incident response plans to address any actual or threatened security incident or data breach.
(e) None of the software owned by the Company is currently or was in the past distributed or used with any Publicly Available Software in a manner that would require that any Intellectual Property owned or used by the Company be dedicated to the public domain, disclosed, distributed in source code form or made available at no charge.
(f) The Company is not a party to any escrow agreement pertaining to source code for software owned by the Company. The Company has not provided source code for any software owned by the Company to any third party.
(g) Each current and former Company employee, contractor, director, manager, and officer who has participated in, been involved in, or access who contributed to, the creation or development of any personal information material Intellectual Property owned, or purported to be owned by, the Company has executed a valid and enforceable written Intellectual Property assignment and confidentiality agreement for the sole and exclusive benefit of the Company in the custody form of (i) a present assignment of all rights, title and interests that such Person may have, may have had or control may hereafter acquire in or to such Intellectual Property and a valid and enforceable waiver of any Company Entityand all rights (including moral rights) that such Person may have therein and (ii) a nondisclosure agreement.
(h) All required filings The Company has taken all commercially reasonable measures to protect the secrecy and fees related value of the Company’s trade secrets and proprietary information. The Company has taken all commercially reasonable steps to maintain the Registered IP have validity and enforceability of all material Intellectual Property owned by the Company.
(i) No restriction asserted by the Company on any Governmental Authority’s use or disclosure of any technical data or computer software has been timely submitted with and paid to the relevant Governmental Entity, and no required filings finally adjudicated as unjustified or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactionsinvalid. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity pending or, to the Knowledge of the Company, threatened pre-challenge requests for information, challenges, appeals, or other proceedings by any Affiliate Governmental Authority related to the validity or justification for any restrictions asserted by the Company on such Governmental Authority’s use or disclosure of any officertechnical data or computer software.
(j) No restrictive marking applied by the Company to any technical data or computer software has been finally adjudicated as non-conforming. No Governmental Authority has notified the Company that any restrictive marking applied by the Company to any technical data or computer software is non-conforming.
(k) All technical data and computer software delivered with less than unlimited rights pursuant to a Government Contract has been identified and marked in accordance with such Government Contract.
(l) No Intellectual Property owned by the Company or used or held for use in the Company’s Business as currently conducted and as presently contemplated to be conducted has been delivered to any Governmental Authority with unlimited rights.
(m) The Company is in compliance in all material respects with all Privacy and Security Laws and has implemented commercially reasonable policies, directorprograms, managerand procedures (including administrative, stockholder technical, and physical safeguards): (i) to protect against unauthorized access, use, modification, and disclosure of and to protect the confidentiality, integrity, and security of, Personal Information and proprietary information in the Company’s possession, custody, or member control; and (ii) as required in all material respects to comply with applicable Law, including any Privacy and Security Law.
(n) In the past five (5) years, there has been no material data security breach of any Company EntityComputer System or network, or unauthorized use or disclosure of any Personal Information, owned, used, stored, received, or controlled by, or on the other hand, except for employment Contracts or relationshipsbehalf of, the provision Company, including any unauthorized use or disclosure of compensation Personal Information, that would constitute a breach for which notification to individuals and/or regulatory authorities is required under any applicable Privacy and benefits Security Law.
(o) No Governmental Authority or any other Person has made any material claim (in the case of any other Person, in writing) or brought any material Legal Proceeding (including any investigation by any Governmental Authority for a violation of any Privacy and Security Law) relating to officersthe Company’s information privacy or data security practices, directorsincluding with respect to the access, managers disclosure or Employees use of Personal Information or proprietary information maintained by, or on behalf of, the Company, and, to the Company’s Knowledge, no Governmental Authority or any other Person has threatened any such claim or Legal Proceeding or conducted any investigation or inquiry with respect thereto. Complete and accurate copies of any written complaints delivered to the Company during the past twelve (12) months alleging a violation of any Privacy and Security Law have been made available to Purchaser.
(p) The Company’s past and present collection, use, retention, and dissemination of Personal Information is, and has been in the past, in compliance in all material respects with the terms of: (i) all Contracts to which the Company is a party relating to data privacy, security or breach notification; (ii) any applicable Law, including any Privacy and Security Law, or (iii) any written Company privacy policy.
(q) Except as set forth in Section 3.14(q) of the Company Entities Disclosure Schedule, the Company has required and powers requires all Persons to which it provided or provides access to Personal Information to maintain the privacy and security of attorney such information, including by contractually obligating such Persons to protect such information from unauthorized access by, or disclosure to, any unauthorized Persons.
(r) The execution, delivery and similar grants performance of authoritythe Transaction Agreements and the consummation of the Transaction, in each caseincluding any transfer of Personal Information resulting from the Transaction will not materially violate any Privacy and Security Law as that Law currently exists or as it existed at any time during which any Personal Information was collected or obtained by or on behalf of the Company, made or entered into by any other privacy and data security requirements imposed on the Company Entity in under any Contracts. At the ordinary course of businessClosing, the Company will continue to have the right to use such Personal Information on terms and conditions identical to those on which the Company had the right to use such Personal Information immediately prior to the Closing.
Appears in 1 contract
Intellectual Property and Data Privacy. (a) Section 4.18(a) of Except as would not reasonably be expected to have, individually or in the Disclosure Schedule identifiesaggregate, as of the date of this Agreementa Material Adverse Effect, all Intellectual Property that is each (i) Owned Intellectual Property subject to an application or registration with a Governmental Entity (by name, owner and, where applicable, registration or application number trademark and jurisdiction) (the “Registered IP”)service mxxx registrations and applications, (ii) material trade secrets (as such term is defined in the Defend Trade Secrets Actcopyright registrations, 18 U.S.C. § 1839) and included in the Owned Intellectual Property (the “Company Trade Secrets”), and (iii) all other Intellectual Property domain name registrations and (iv) patents and patent applications, in each case, that are owned by a third party that is licensed to the Company Entities that is material to the operation one of the business Debtors, are subsisting, valid, in full force and effect and have not expired or been cancelled, abandoned or otherwise terminated, and the payment of the Company Entitiesall renewal and maintenance fees and expenses in respect thereof, excluding any Intellectual Property that is used pursuant and all filings related to an Incidental Inbound License (collectively with the Registered IP renewal and Company Trade Secretsmaintenance, the “Scheduled IP”). Each item of Registered IP is valid have been duly and subsisting (other than applications)timely made.
(b) Except as identified would not reasonably be expected to have, individually or in Section 4.18(b) of the Disclosure Scheduleaggregate, the Company Entities own or have the right to use pursuant to a license, the Intellectual Property that is necessary for each Company Entity to operate its business as currently conducted.
(c) Except as identified in Section 4.18(c) of the Disclosure ScheduleMaterial Adverse Effect, (i) no Company Entity is currently infringing any 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 available for use in the same manner and on substantially the same terms as of immediately prior to the date hereof, (iii) to the Knowledge of the Company, none of the Debtors is interfering with, infringing upon, misappropriating or otherwise violating in any third party material respect any valid Intellectual Property Rights of any Person, (iv) no claim or litigation regarding any of the foregoing that is not licensed (or would be) reasonably expected to have a Material Adverse Effect is pending or, to the Company EntitiesKnowledge of the Company, andthreatened in writing, (v) to the Knowledge of the Company, no third party is currently misappropriating or infringing in any material respect any Owned Intellectual Property. All claims made Property owned by the Company Entities in connection with an application for marketing approval from a Governmental EntityDebtors, or on or in connection with the advertising, offering for sale or sale of products or services by the Company Entities and (including labels, packaging and other communications), are truthful and non-deceptive in all material respects, vi) to the Knowledge of the Company adequately substantiatedCompany, and otherwise in material compliance with all applicable Laws.
(d) No Owned no Intellectual Property owned by the Debtors is subject to any contract containing any covenant outstanding order, judgment, decree or other provision that stipulation restricting or limiting in any way limits material respect the use or restricts licensing thereof by the ability of the Company Entities to use, exploit, assert or enforce any Owned Intellectual PropertyDebtors.
(ec) The Company Entities have Except as would not taken any action or failed to take any action that could reasonably be expected to result have, individually or in the abandonmentaggregate, cancellation, forfeiture, relinquishment, invalidation, waiver or unenforceability of any Owned Intellectual Property that is Scheduled IP. The Scheduled IP owned or used by the Company Entities immediately prior to the Closing will continue to be owned or available for use by the Company Entities on identical terms and conditions immediately after the Closing and all such intellectual property is fully transferable, alienable, or licensable without restriction and without payment of any kind to any other third party.
(f) All past and present employees and consultants and contractors of the Company have entered into valid and binding written contracts with the Company sufficient to vest title in the Company of all Intellectual Property created by such employee or consultant/contractor while employed or engaged by the Company and to maintain the confidentiality of the Company’s confidential information and the Company Trade Secrets. The Company has made reasonable measures to protect and maintain (i) the proprietary nature of each item of Owned Intellectual Property and (ii) the confidentiality of any Company Trade Secrets. No Company Trade Secrets or other material confidential information of any Company Entity, or the confidential information of any Company Entity customer held by such Company Entity pursuant to an obligation of confidentiality, has been disclosed or permitted to be disclosed to any Person by any Company Entity (except in the ordinary and normal course of business and under an obligation of confidence). This subsection (f) does not constitute a warranty that any Company Trade Secrets exist.
(g) Except as identified in Section 4.18(g) of the Disclosure ScheduleMaterial Adverse Effect, (i) each of the Company Entities are Debtors complies in compliance all material respects with all applicable LawsLaw, as well as their respective its own rules, policies policies, and procedures, relating to privacy, data protection, protection and the collection, useretention, storage protection and disposal use of personal information collected, used or held for use by the Company Entities in the conduct of their respective businessesit and its Subsidiaries, (ii) no Proceeding is pending 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 threatened in writing alleging a violation of any Person’s rights of publicity or privacy or personal information or data privacy rights and handled, (iii) to the Knowledge each of the Company, there Debtors complies in all material respects with all Material Contracts under which a Debtor is no currently occurring, and has been no occurrence in the six years of, (A) material loss, theft a party to or data or security breach bound by relating to any Company Entity’s privacy, data or (B) material unintendedprotection and the collection, illegal or improper retention, protection and use or disclosure of, or access to, any of personal information in collected, used or held for use by a Debtor and (iv) no claim or litigation regarding any of the custody foregoing that is (or control of any Company Entity.
(hwould be) All required filings and fees related reasonably expected to the Registered IP have been timely submitted with and paid to the relevant Governmental Entity, and no required filings or fees related to the Registered IP are due within the first thirty days of Closing. Affiliate Transactions. There are no Contracts between or among any Company Entity, on the one hand, and any officer, director, manager, stockholder or member of any Company Entity a Material Adverse Effect is pending or, to the Knowledge of the Company, any Affiliate threatened in writing. To the Knowledge of the Company, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, there have been no security breaches in the information technology systems of any officer, director, manager, stockholder or member of any Company Entity, on the other hand, except for employment Contracts or relationships, the provision of compensation and benefits to officers, directors, managers or Employees of the Company Entities and powers of attorney and similar grants of authority, in each case, made or entered into by any Company Entity in the ordinary course of businessDebtors.
Appears in 1 contract
Samples: Equity Purchase and Commitment Agreement (Hertz Corp)
