Intellectual Property and Information Technology. (a) Section 3.11(a) of the Parent Disclosure Schedule sets forth a true, correct and complete list of all Registered Intellectual Property owned by the Company or any of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted. (b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights. (c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property. (d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects. (e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiaries.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Arch Capital Group Ltd.), Stock Purchase Agreement (American International Group Inc)
Intellectual Property and Information Technology. (ai) Section 3.11(a) of the Parent The Company Disclosure Schedule Letter sets forth a true, correct complete and complete accurate list of all Registered registered or applied-for Owned Intellectual Property owned by the Company or any of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item .
(ii) The Company or one of its Subsidiaries owns sole and exclusive right, title and interest in and to all Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries Property, free and clear of any Liens (Liens, other than Permitted Liens). The Registered Intellectual Property (with the exception of any pending applications) is valid, subsisting, and enforceable. The Company and its Subsidiaries have not taken or failed to take any action which would prejudice the obtaining of registration for any Owned Intellectual Property for which the Company has made a decision to seek registration or the enforcement of any registrations included in the Registered Intellectual Property.
(iii) In the past 3 years, the Company and each of the Transferred its Subsidiaries has the right have not assigned or otherwise transferred ownership of, or agreed to use (i) all assign or otherwise transfer ownership of, or exclusively licensed or agreed to exclusively license rights to, any material Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conductedany Person.
(biv) To Except for non-exclusive licenses granted to third parties in the Knowledge ordinary course of the Parentbusiness, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred its Subsidiaries has received granted nor is required to grant any written claim license, assignment, Lien, consent, or notice from undertaking in respect of the Owned Intellectual Property, nor has the Company agreed to any Person restriction on use of the Owned Intellectual Property or entered into any settlement agreement or co-existence agreement in respect of the Owned Intellectual Property. The Company and its Subsidiaries have not licensed the Owned Intellectual Property exclusively to any Person.
(v) The Company and its Subsidiaries, as applicable, have sole and exclusive right to bring proceedings for infringement, misappropriation, dilution, violation or unauthorized used of the Owned Intellectual Property without any obligation to obtain consent, joinder or to provide an accounting to any third party. Except as disclosed in the past three (3) years that (A) Company Disclosure Letter, no interferences, re-examinations, oppositions, cancellation proceedings, inter partes reviews, covered business method reviews, post-grant reviews, pre-issue submission, derivation proceedings or other proceedings pertaining to the Registered Owned Intellectual Property are pending or, to the knowledge of Company, threatened. Neither the Company or nor any of the Transferred its Subsidiaries is in material breach of or material default under any Contract relating to the Owned Intellectual Property or Licensed Intellectual Property and, to the knowledge of Company, no third party is in material breach or default under such Contacts.
(vi) None of the Company, its Subsidiaries or the conduct of the businesses of the Company and its Subsidiaries as presently conducted, including use of the Owned Intellectual Property on its own or in combination with any Licensed Intellectual Property, infringes upon, misappropriates, or violates the Intellectual Property Rights of any Person, and no proceeding is pending or, to the knowledge of the Company, threatened (i) alleging that the Company and its Subsidiaries or the conduct of the businesses of the Company and its Subsidiaries as previously conducted or presently conducted, including use of the Owned Intellectual Property on its own or in combination with any Licensed Intellectual Property, infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property Rights of any Person.
(vii) To the knowledge of the Company, no Person is currently engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the any Owned Intellectual Property.
(viii) Neither the execution and delivery of this Agreement, (iii) nor the Owned Registered performance by the Company of any actions contemplated by this Agreement, will cause the termination of any Contract for Licensed Intellectual Property is subsistingProperty, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating impair or restrict the rights of the Company or any of the Transferred its relevant Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, possess, sell, transfer, license, or exercise any of rights in the Owned Intellectual Property.
(dix) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the The Company and the Transferred its Subsidiaries have taken commercially reasonable efforts measures to maintain the confidentiality of all material confidential Owned Intellectual Property. There has been no unauthorized disclosure of any material confidential Owned Intellectual Property.
(x) None of the Corporation or any of its Subsidiaries has received any funding from governments, universities, colleges, other educational institution or research centers for research and development projects that grants rights in the Owned Intellectual Property to the funding entity or that imposes any restrictions that are still in effect in respect of an assignment, license or any other disposition or grant of interest in the Owned Intellectual Property.
(xi) All employees or contractors involved in the creation of material Owned Intellectual Property have assigned in writing or by operation of the Law to the Company or one of its Subsidiaries all right, title and interest in and to the applicable material Owned Intellectual Property, and have waived in writing their moral rights in and to the applicable material Owned Intellectual Property.
(xii) The Owned Intellectual Property and the Licensed Intellectual Property constitutes all of the Intellectual Property used in or required for the operation of the businesses of the Company and its Subsidiaries as currently conducted.
(xiii) The Company IT SystemsSystems are reasonably sufficient for the immediate needs of the business of the Company and its Subsidiaries, as currently conducted. The Company IT Systems are in sufficiently good working condition to perform all information technology operations and include sufficient licensed capacity (iiwhether in terms of authorized sites, units, users, seats, or otherwise) for all software, platforms and systems, in each of the foregoing cases, as necessary for the conduct of the respective businesses of the Company and its Subsidiaries as currently conducted.
(xiv) The Company and its Subsidiaries have implemented commercially reasonable administrative, physical and technical safeguards (but in no event less than what is required by applicable Law (including, for certainty, Privacy Laws) or under any Material Contract) to: (A) protect the Company IT Systems are functioning in material compliance with all applicable technical specificationsand the confidentiality, integrity and security of Personal Information against unauthorized access, use, modification, disclosure or other misuse by any Person; (B) defend Company IT Systems against denial of service attacks, distributed denial of service attacks, hacking attempts, security threats, ransomware incidents, and like attacks and activities by any other Person; and (iiiC) to ensure the Knowledge continued, uninterrupted, and error-free operation of Company IT Systems.
(xv) To the knowledge of the ParentCompany, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems have had no material errors or defects that have not been materially remedied. To the knowledge of the Company, the Company IT Systems contain no device or code designed to, in any manner: (A) disrupt, disable, harm distort or otherwise impede or impair the legitimate, normal and authorized operation of or provide unauthorized access to such Company IT Systems (including what are sometimes referred to as “viruses”, “malware”, “spyware”, “ransomware”, “worms”, “time bombs,” “back doors” or “advanced persistent threats”); or (B) damage, destroy, or prevent the access to or use of any data or file without the user’s consent, in each of the foregoing cases, that has not been remedied removed or replaced in all respects.
(e) To the Knowledge of the Parent, the fully remedied. The Company and the Transferred its Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in not experienced within the past three years: (31) yearsany material disruption to, there has not been any data security breach or unauthorized accessmaterial interruption in, use or disclosure the conduct of any Protected Information owned, stored, maintained or controlled by or on behalf the business of the Company or its Subsidiaries attributable to a defect, bug, breakdown, unauthorized access, introduction of a virus or other malicious programming, or other failure or deficiency on the part of any computer software or Company IT Systems; or (2) to the knowledge of the Transferred SubsidiariesCompany, any other unauthorized access, use, intrusion, or breach of security, or material failure, breakdown, performance reduction, or other adverse event affecting any Company IT Systems.
Appears in 2 contracts
Samples: Arrangement Agreement (SNDL Inc.), Arrangement Agreement (Valens Company, Inc.)
Intellectual Property and Information Technology. (a) Section 3.11(a) of the Parent Seller Disclosure Schedule Letter sets forth forth, as of the date hereof, a true, correct and complete list of (i) all Registered Intellectual Property, (ii) the jurisdiction in which such Registered Intellectual Property owned by has been registered or filed and the Company applicable registration or application number, and (iii) any of the Transferred Subsidiaries (collectively, the “Owned other Person that has an ownership interest in such Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries .
(which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of b) The Owned Intellectual Property and the Licensed Intellectual Property constitute all of the Intellectual Property that is owned by used in the conduct of the Business as currently conducted. The Company and/or each of a Transferred Subsidiary owns the Transferred Subsidiaries Owned Intellectual Property and has sufficient right to use the Owned Intellectual Property and the Licensed Intellectual Property, free and clear of any Liens (other than Permitted Liens), that is used in the conduct of the Business as currently conducted. To the Knowledge of the Seller, neither the Company nor any Transferred Subsidiary is in material breach of any agreement for the provision or use of the Licensed Intellectual Property that is used in the conduct of the Business.
(c) Since January 1, 2007 (or with respect to the Seller, its date of organization, or with respect to any Transferred Subsidiary that was incorporated or organized subsequent to January 1, 2007, its respective date of incorporation or organization), the Company and each Transferred Subsidiary has had a policy, and has materially complied with that policy, to require each employee to maintain the confidentiality of any confidential information of the Company and each Transferred Subsidiary that has been provided to such employee.
(d) Except as set forth on Section 3.11(d) of the Seller Disclosure Letter, since January 1, 2007: (i) there is no litigation pending or, to the Knowledge of the Seller, threatened in writing against the Seller, the Parent or any of their respective Affiliates, (ii) to the Knowledge of the Seller, there is no litigation pending or threatened in writing against the customers of the Business (with respect to such customers, as relates to the products or services provided by the Business) and (iii) to the Knowledge of the Seller, none of the Seller, the Parent or any of their respective Affiliates has received unresolved written communication, in each case of (i), (ii) and (iii) (A) alleging that the conduct of the Business or the products and services offered by the Business infringe, dilute, misappropriate or otherwise violate a third party’s Intellectual Property rights or (B) challenging the ownership, use, validity, enforceability or registrability of any Owned Intellectual Property.
(e) Except as set forth on Section 3.11(e) of the Seller Disclosure Letter, neither the Company nor any Transferred Subsidiary has brought, or to the Knowledge of the Seller, threatened a claim against a third party and neither the Company nor any Transferred Subsidiary has sent, since January 1, 2007, any unresolved written communications alleging that any Person is materially infringing upon, diluting, misappropriating or otherwise violating any Owned Intellectual Property.
(f) The Company and the Transferred Subsidiaries have established and maintain commercially reasonable data and information security programs and privacy policies and the Company and each the Transferred Subsidiaries are in material compliance with such programs and policies. Except as set forth on Section 3.11(f) of the Seller Disclosure Letter, since January 1, 2007, neither the Company nor any Transferred Subsidiary, nor, to the Knowledge of the Seller, any service provider to the Company or any of the Transferred Subsidiaries has the right to use (i) has suffered a material security breach with respect to the data or information systems used in the conduct of the Business which breach had an effect on the operation of the Business or (ii) has notified or has been required under applicable Law to notify (A) any employee of the Company or any Transferred Subsidiary, customer of the Business or any other Person in connection with the Business of any information security breach involving such employee’s, customer’s or other Person’s personal information (including private, health, medical and financial information) or (B) any Governmental Authority in relation to any of the foregoing.
(g) The Company and the Transferred Subsidiaries have taken all reasonable steps to maintain the confidentiality of proprietary information that the Company or any of the Transferred Subsidiaries holds, or purports to hold, as a Trade Secret.
(h) The Company and each Transferred Subsidiary uses anti-virus software in accordance with commercially reasonable standards.
(i) All material hardware currently being used by the Company and the Transferred Subsidiaries is, in all material respects, in such reasonable and useable operating condition as is necessary (i) to conduct the Business as currently conducted and (ii) for a technician or programmer of reasonable skill to be able to provide routine support and maintenance, including but not limited to replacement and upgrades, as the case may be.
(j) With respect to Intellectual Property that is software, (i) such Owned Intellectual Property that is software does not contain any viruses, malware, time-bombs, key-locks or any other devices designed to, without the knowledge and authorization of the Company or a Transferred Subsidiary, disrupt, disable, harm or interfere with the operation of such Owned Intellectual Property or the integrity of the data or information produced by such Owned Intellectual Property and (ii) to the Knowledge of Parentthe Seller, the other such Licensed Intellectual Property useddoes not contain any viruses, held for use malware, time-bombs, key-locks or otherwise necessary in connection any other devices designed to, without the knowledge and authorization of the Company or a Transferred Subsidiary, disrupt, disable, harm or interfere with the Business, as presently conductedoperation of such Licensed Intellectual Property or the integrity of the data or information produced by such Licensed Intellectual Property.
(bk) To Provided that all Third Party Consents are obtained, neither the Knowledge execution, delivery or performance of this Agreement or any of the ParentAncillary Agreements nor the consummation of any of the transactions contemplated by this Agreement or any of the Ancillary Agreements will, with or without the giving of notice or lapse of time, or both, result in, or give any other Person the right or option to cause or declare, (i) a loss of, or encumbrance on, any Owned Intellectual Property used in the operation conduct of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third partyas currently conducted, (ii) none a material breach of any material license agreement to which the Company or the a Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries Subsidiary is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Propertya party, (iii) the release, disclosure or delivery of any Owned Registered Intellectual Property is subsisting, valid and enforceable, and to any escrow agent or other Person or (iv) no the grant, assignment or transfer to any other Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets license or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title right or interest of the Company under, to or the Transferred Subsidiaries in, or their respective rights to use, in any of the Owned Intellectual Property.
(dl) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (iAll separation actions set forth on Section 3.11(l) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not Seller Disclosure Letter have been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled fully completed by or on behalf of the Seller, the Parent or their respective Affiliates (including the Company or any of and the Transferred Subsidiaries).
Appears in 2 contracts
Samples: Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Metlife Inc)
Intellectual Property and Information Technology. (a) Section 3.11(a) of the Parent Seller Disclosure Schedule Letter sets forth forth, as of the date hereof, a true, correct and complete list of (i) all Registered Intellectual Property owned by and (ii) the Company jurisdiction in which such Registered Intellectual Property has been registered or any of filed and the applicable registration or application number. The Companies and the Transferred Subsidiaries have complied in all material respects with their duty of candor and disclosure to the applicable Governmental Authorities with respect to all applications and registrations for Registered Intellectual Property and have made no material misrepresentations in any such applications.
(collectivelyb) The Owned Intellectual Property and the Licensed Intellectual Property constitute all of the Intellectual Property that is material to, and, to the Knowledge of the Parent, is used in, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by conduct of the Company or any of Business as currently conducted. The Companies and/or the Transferred Subsidiaries (which for own the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by and have sufficient right to use the Company and/or each of Owned Intellectual Property and the Transferred Subsidiaries Licensed Intellectual Property, free and clear of any Liens (other than Permitted Liens), and that is used in the conduct of the Business as currently conducted.
(c) Since March 31, 2007, in all material respects, each Company and each Transferred Subsidiary has taken commercially reasonable steps to maintain and protect the ownership of its Owned Intellectual Property material to the conduct of the Business.
(d) Except as set forth on Section 3.11(d) of the Seller Disclosure Letter, since March 31, 2007: (i) there is no litigation pending or, to the Knowledge of the Parent, threatened in writing against the Parent, any of the Sellers or any of their respective Affiliates, and (ii) to the Knowledge of the Parent, none of the Sellers, the Parent or any of their respective Affiliates has received any written communication that remains unresolved as of the date hereof, in each case of (i) and (ii) (A) alleging that the conduct of the Business infringes, dilutes, misappropriates or otherwise violates a third party’s Intellectual Property rights or (B) challenging the ownership, use, validity, enforceability or registrability of any Owned Intellectual Property. Except as would not reasonably be expected to have a Material Adverse Effect, none of the Companies or the Transferred Subsidiaries uses interactive voice response systems in connection with telephone call center technologies that infringe on any patents, or patents that may be issued on patent applications, owned or licensed by any of Xxxxxx X. Xxxx, Xxxxxx X. Xxxx Technology Licensing, L.P. and/or A2D, LP or any of their respective Affiliates.
(e) Except as set forth on Section 3.11(e) of the Seller Disclosure Letter, since March 31, 2007, none of the Companies or any of the Transferred Subsidiaries has brought, or to the right Knowledge of the Parent, threatened a claim against a third party in writing that remains unresolved as of the date hereof alleging that any Person is materially infringing upon, diluting, misappropriating or otherwise violating any Owned Intellectual Property.
(f) The Companies and the Transferred Subsidiaries have established and maintain commercially reasonable data and information security programs and privacy policies and the Companies and the Transferred Subsidiaries are in material compliance with such programs and policies. Except as set forth on Section 3.11(f) of the Seller Disclosure Letter, since March 31, 2007, none of the Companies, or any of the Transferred Subsidiaries, or, to use the Knowledge of the Parent, any service provider to any of the Companies or any of the Transferred Subsidiaries (i) has suffered a material security breach with respect to the data or information systems used in the conduct of the Business which breach had an effect on the operation of the Business or (ii) has notified or has been required under applicable Law to notify (A) any employee of any of the Companies or any of the Transferred Subsidiaries, any customer of the Business or any other Person in connection with the Business of any information security breach involving such employee’s, customer’s or other Person’s personal information (including private, health, medical and financial information) or (B) any Governmental Authority in relation to any of the foregoing.
(g) The Companies and the Transferred Subsidiaries have taken all commercially reasonable steps to maintain the confidentiality of proprietary information that any of the Companies or any of the Transferred Subsidiaries holds, or purports to hold, as a Trade Secret that is material to the conduct of the Business, including, since March 31, 2007, taking all commercially reasonable steps to cause each employee of each Company and Transferred Subsidiary to comply with a policy of maintaining the confidentiality of any confidential information of each Company and each Transferred Subsidiary that has been provided to such employee.
(h) Each Company and each Transferred Subsidiary uses anti-virus software in accordance with commercially reasonable standards.
(i) All hardware currently being used by the Companies and the Transferred Subsidiaries that is material to the conduct of the Business is, in all material respects, in such reasonable and useable operating condition as is necessary to conduct the Business as currently conducted.
(j) With respect to any Owned Intellectual Property and Licensed Intellectual Property that is software, (i) such Owned Intellectual Property that is software does not contain any viruses, malware, time-bombs, key-locks or any other devices designed to, without the knowledge and authorization of a Company or a Transferred Subsidiary, disrupt, disable, harm or interfere with the operation of such Owned Intellectual Property or the integrity of the data or information produced by such Owned Intellectual Property and (ii) to the Knowledge of the Parent, the other such Licensed Intellectual Property useddoes not contain any viruses, held for use malware, time-bombs, key-locks or otherwise necessary in connection any other devices designed to, without the knowledge and authorization of a Company or a Transferred Subsidiary, disrupt, disable, harm or interfere with the Business, as presently conductedoperation of such Licensed Intellectual Property or the integrity of the data or information produced by such Licensed Intellectual Property.
(bk) To Provided that all Third Party Consents are obtained, neither the Knowledge execution, delivery or performance of this Agreement or any of the ParentAncillary Agreements nor the consummation of any of the transactions contemplated by this Agreement or any of the Ancillary Agreements will, with or without the giving of notice or lapse of time, or both, result in, or give any other Person the right or option to cause or declare, (i) a loss of, or encumbrance on, any Owned Intellectual Property used in the operation conduct of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third partyas currently conducted, (ii) none a material breach of any material license agreement to which any of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company Companies or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Propertya party, (iii) the release, disclosure or delivery of any Owned Registered Intellectual Property is subsisting, valid and enforceable, and to any escrow agent or other Person or (iv) no the grant, assignment or transfer to any other Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets license or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title right or interest of the Company under, to or the Transferred Subsidiaries in, or their respective rights to use, in any of the Owned Intellectual Property.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiaries.
Appears in 2 contracts
Samples: Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Prudential Financial Inc)
Intellectual Property and Information Technology. (aA) Section 3.11(aDetails of all registered Company IPR (and all applications for registration comprising part of Company IPR) and all registered Business IPR (and all applications for registration comprising part of Business IPR) are set out in the Disclosure Letter and such Intellectual Property is owned legally and beneficially and exclusively by the Company or member of the Parent Vendor's Group identified as owning it in the Disclosure Schedule sets forth a true, correct Letter and complete list the Company IPR is free of all Registered charges, options, liens, equities and encumbrances, save for any agreement disclosed against Warranty 21(C) and any non-exclusive, non-material IP Licences granted by the Companies in the ordinary course of the Transferring Business. All material unregistered Business IPR and material unregistered Company IPR is owned legally and beneficially and exclusively by a member of the Vendor's Group or a Company (as appropriate).
(B) All renewal fees and other official registry fees due and payable at the date of Completion in respect of the rights referred to in the first sentence of SUB-PARAGRAPH (A) have been paid. All steps reasonably required to be taken before Completion for the prosecution and maintenance of patents and patent applications of such Company IPR and Business IPR have been taken.
(C) Each of the material licences and other material agreements relating to Intellectual Property or know-how (excluding computer software) granted to or by any Company or to or by any member of the Vendor's Group in relation to the Transferring Business is either listed in the Data Room Index (with a complete copy contained in the Data Room) or a complete copy is contained in the Disclosure Bundle.
(D) None of the Companies nor any member of the Vendor's Group nor, so far as the Vendor is aware, any other party is in breach of any licence or other agreement relating to Intellectual Property or know-how (excluding computer software) granted to or by any Company, or to or by any member of the Vendor's Group in relation to the Transferring Business.
(E) So far as the Vendor is aware, there is no unauthorised use or infringement by any person of the Company IPR, the Business IPR, or know-how proprietary to a member of the Vendor's Group which is used in the Transferring Business or know-how proprietary to any of the Companies, where the value of the claim in respect of such infringement or unauthorised use is material in monetary terms (having regard to the size of the Transferring Business) or where such infringement or unauthorised use is, if continued, likely to have a material adverse effect on the Transferring Business.
(F) So far as the Vendor is aware, the operations of the Transferring Business do not infringe or make unauthorised use of any Intellectual Property or know-how of any third party.
(G) No Company has disclosed any of its proprietary know-how (which at the time of disclosure was confidential and material to the Transferring Business) to a third party except under an obligation of confidentiality and no member of the Vendor's Group has disclosed any of its proprietary know-how relating to the Transferring Business (which at the time of disclosure was confidential and material to the Transferring Business) to a third party except under an obligation of confidentiality.
(H) No Company nor any member of the Vendor's Group has received written notice of any, and so far as the Vendor is aware there are no, oppositions or actions in existence or threatened for cancellation, revocation or challenging the validity or title in relation to any of the registered Intellectual Property referred to in the first sentence of SUB-PARAGRAPH (A).
(I) The Intellectual Property referred to in the first sentence of SUB-PARAGRAPH (A) is subsisting and has not lapsed or been cancelled.
(J) The Business IPR, the Company IPR and the Shared IPR is all the Intellectual Property currently owned by members of the Vendor's Group: (i) which has been used commercially by or for the Transferring Business; or (ii) which is material to any research or development program of the Transferring Business, in each case, at or during the 36 months prior to the date of this Agreement
(K) There are no orders, decrees, injunctions, judgments or other decisions by any court, arbitration, administrative or other tribunal of competent jurisdiction delivered prior to the date of this Agreement and still in force, restricting the rights of the Companies or any member of the Vendor's Group (as appropriate) in respect of the Company IPR or the Business IPR.
(L) So far as the Vendor is aware, all know-how and Intellectual Property arising from the research and development carried on at the Bedford Property in the 36 months prior to Completion is owned by the Companies except where otherwise provided for in agreements which are included in the Data Room.
(M) The Business IPR includes (i) all trade marks owned by a member of the Vendor's Group which are used in the Transferring Business (excluding the Unilever Marks); and (ii) all Intellectual Property owned by a member of the Vendor's Group which is material to any products sold by the Transferring Business at the date of this Agreement .
(N) The Monoclonal Assets set out in Attachment 7 are all the antibody clones and other cell lines owned by a Company or owned by or licensed to any member of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” Vendor's Group and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) used commercially by or for the Transferring Business, or (ii) material to any research or development program material to the Transferring Business, in each case, at or during the 36 months prior to the date of this Agreement.
(O) There have been no downtimes, equipment breakdowns or malfunctions, data loss or failures or defects in the IT Systems in the 12 months prior to the date of this Agreement which have had a material adverse effect upon the business of any Company or on the US Business.
(P) Part 21 (P) of the Disclosure Letter contains a list of all Owned Intellectual Property the material licences to the Vendor's Group of computer software which relate to the Transferring Business, and correctly identifies those: (i) which will not be assigned to the Purchaser at Completion; and (ii) which will be assigned to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conductedPurchaser but require a third party consent to such assignment.
(bQ) To the Knowledge None of the ParentCompanies nor so far as the Vendor is aware any other party is in breach of any agreement relating to the IT Systems which is material to the Transferring Business and to which a Company is a party and no such agreement is capable of termination (other than by the relevant Company) as a result of completion of the transaction contemplated by the Agreement. No member of the Vendor's Group nor, so far as the Vendor is aware, any other party, is in breach of any agreement relating to the IT Systems and to which a member of the Vendor's Group is a party and no such agreement which is material to the Transferring Business is capable of termination (other than by the relevant member of the Vendor's Group) as a result of completion of the transaction contemplated by the Agreement (excluding any agreement set out in paragraph 21(S) of the Disclosure Letter).
(R) The Domain Names comprise all domain names: (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person used in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid Transferring Business; and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company rights to which are held by any member of the Vendor's Group and incorporating any trade xxxx (other than the Unilever Marks) used in the Transferring Business. All fees and necessary administrative steps required before Completion to maintain such Domain Names have been paid or taken.
(S) Part 21 (S) of the Disclosure Letter contains a list of assets and agreements (excluding licences of computer software) forming part of the IT Systems which are functioning in material compliance with all applicable technical specifications, owned or held by a member of the Vendor's Group and which will not be sold or assigned (iiias appropriate) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respectsPurchaser.
(eT) To The cash receipts (gross of any amounts due to Tax, including, without limitation, any withholding tax) from the Knowledge licensing of Business IPR pursuant to the IP Licences listed in ATTACHMENT 15 for the 11 month period to 1st December, 2001 is no less than the amount which is (pound)50,000 less than (pound)5,170,000 and such amount represents the full amount of the Parent, income received by the Company and the Transferred Subsidiaries own Companies or have the right to use the material Company IT Systems used or held for use in the operation any member of the Business. Except as would not, individually or in the aggregate, reasonably be expected Vendor's Group pursuant to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held those licences of Business IPR for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiariessuch period.
Appears in 2 contracts
Samples: Sale Agreement (Inverness Medical Innovations Inc), Sale Agreement (Inverness Medical Innovations Inc)
Intellectual Property and Information Technology. (a) Section 3.11(a4.14(a) of the Parent Company Disclosure Schedule sets forth contains a true, correct and complete list of all Registered Intellectual Property owned by the exclusive Inbound Licenses, exclusive Outbound Licenses and Company IP, including applications for patents, trademarks or any copyrights pending as of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any date of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”)this Agreement. Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the ParentCompany, (i) the operation of the Business by the Company all material Company-Owned IP is valid and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third partyenforceable, (ii) none of the Company material Company-Owned IP has lapsed or the Transferred Subsidiaries has received any written claim been abandoned or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationscancelled, and (iii) all issuance, renewal, maintenance and other payments that are or have become due with respect to the Knowledge of the Parent, in the past eighteen (18) months, there has not material Company-Owned IP have been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled timely paid by or on behalf of the Company or the relevant Subsidiary. To the Knowledge of the Company, there are no pending or threatened in writing inventorship challenges, inter partes reviews, post grant reviews, covered business method patent reviews, reexaminations, cancellations, oppositions, nullity proceedings, interferences, or other proceedings to challenge the validity or enforceability of the Company-Owned IP. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one or more of its Subsidiaries owns with clear title, has a valid license related to, or otherwise possesses legally enforceable rights to use, free and clear of all material Liens, all Company IP. Such Company IP will be owned by or otherwise available for use by the Surviving Corporation and its Subsidiaries immediately following the Closing on substantially identical terms and conditions as it was available to the Company and its Subsidiaries immediately prior to the Offer Closing Date. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (a) to the Knowledge of the Company, neither the conduct of the business of the Company and its Subsidiaries, nor the sale or use of any product or service offered by the Company or any of its Subsidiaries by any of their resellers, distributors, customers or users, infringes or violates, or constitutes a misappropriation, infringement or unauthorized use of any intellectual property rights of any Person and, as of the Transferred date of this Agreement, the Company has not received a written communication from any third party asserting that the Company is or will be obligated to take a license under any intellectual property owned by any third party in order to continue to conduct its business as currently conducted and (b) the Company and its Subsidiaries have taken commercially reasonable actions in accordance with normal industry practice to create, protect, maintain and preserve the Company-Owned IP. The Company and its Subsidiaries have taken reasonable measures to maintain the confidentiality of and protect the proprietary nature of each item of Company-Owned IP, including trade secrets, and to maintain in confidence information owned by another person with respect to which the Company or any of its Subsidiaries has a confidentiality obligation. All Company-Owned IP was created by (i) employees of the Company or one or more of its Subsidiaries acting within the scope of their employment who have validly and irrevocably assigned all of their rights, including intellectual property rights therein, to the Company or one or more of its Subsidiaries or (ii) other Persons who have validly assigned their assignable rights therein, including intellectual property rights, to the Company or one or more of its Subsidiaries. To the Knowledge of the Company, no person or entity (including any current or former employee or consultant of the Company or any of its Subsidiaries) is infringing, violating or misappropriating any material Company IP.
(b) Since January 29, 2018, and except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, there has been no material failure, breakdown, loss or impairment of, or, to the Knowledge of the Company, any unauthorized access to or unauthorized use of, any information technology systems of the Company or any of its Subsidiaries that has resulted in a material disruption or material interruption in the operation of the business of the Company or any of its Subsidiaries or that has resulted in unauthorized disclosure of any confidential information of the Company or any Subsidiary, or personally identifiable information, to any unauthorized person. The Company and its Subsidiaries have in place commercially reasonable disaster recovery and business continuity plans and procedures.
(c) Since January 29, 2018, the Company and each of its Subsidiaries have complied in all material respects with all Laws and applicable contractual and legal requirements pertaining to information privacy and security. Since January 29, 2018, to the Knowledge of the Company, there has been no material release of personally identifiable information by the Company or any Subsidiary of the Company in breach of either (i) a Contract to which the Company or any Subsidiary of the Company is bound or (ii) applicable Law. Since January 29, 2018, none of the Company or any Subsidiary of the Company has been notified that they are the subject of any regulatory investigation, enforcement action or similar action or proceeding alleging breach of data security or privacy obligations.
Appears in 2 contracts
Samples: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
Intellectual Property and Information Technology. (a) Section 3.11(aExcept as set forth on Schedule 3.15(a)(i), the Company and the Subsidiaries own all Intellectual Property Rights necessary to conduct the Business, or possess adequate licenses or other rights thereto. Schedule 3.15(a)(ii) of the Parent Disclosure Schedule sets forth a true, correct an accurate and complete list of all Registered Intellectual Property owned Rights registered in the name of the Company and each of the Subsidiaries and of all material unregistered Intellectual Property Rights belonging to the Company and each of the Subsidiaries. All registrations and applications for registration of Intellectual Property Rights have been validly registered or applied for and maintained and are fully enforceable in the jurisdiction in which they are registered, and such registrations and applications are not subject to, or likely to be subject to, amendment, challenge, removal or surrender, and there is nothing which might prevent the applications from being granted.
(b) Any applicable application, filing, registration, renewal and other fees for the Intellectual Property Rights of the Company and the Subsidiaries have been paid.
(c) Schedule 3.15(c) sets forth an accurate and complete list of all agreements pursuant to which the Company or any of the Subsidiaries is a licensee of any Intellectual Property Rights and, in each case, indicates whether or not the Company or the Subsidiaries in question benefit from exclusive rights pursuant to such licences. The licences set forth in Schedule 3.15(c) cover all of the Intellectual Property Rights used, but not owned, by the Company or any of the Transferred Subsidiaries.
(d) The Company and the Subsidiaries have not licensed any of their Intellectual Property Rights to third parties or Affiliates of the Seller.
(collectivelye) None of the operations of the Company or of any of the Subsidiaries infringe, or are likely to infringe, the “Owned Registered Intellectual Property” and together Property Rights of a third party.
(f) Except as set forth in Schedule 3.15(f), neither the Company nor any of the Subsidiaries has received any notice of a claim that any of the Intellectual Property Rights or licences listed in Schedule 3.15(c) infringes or is likely to infringe or conflicts with any other Intellectual Property Rights of any third party, or that any of the operations of the Company or any Subsidiary infringe, or are likely to infringe, such third party Intellectual Property Rights, and no Proceeding based on any such claim is currently pending or has been threatened. To the Seller’s knowledge, there are no circumstances likely to give rise to such claim.
(g) No third party is infringing, or is likely to infringe, the Intellectual Property Rights owned or used by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”)Subsidiaries. Each item of Owned Intellectual Property is owned No claim has been made by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries which alleges that a third party is engaging in any activity that infringes uponinfringing, misappropriatesor is likely to infringe, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, Rights owned or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of used by the Company or any of the Transferred Subsidiaries in any or which otherwise disputes the right of a third party to use the Intellectual Property Rights owned or used by any of themthe third party. This Section 3.11(b) sets forth To the sole and exclusive representation and warranty of Parent regarding the infringementSeller’s knowledge, misappropriation, dilution and other violation of Intellectual Property rightsthere are no circumstances likely to give rise to such a claim.
(ch) Neither the Company nor any of the Subsidiaries has acquiesced in the unauthorised use by a third party of the Intellectual Property Rights owned or used by the Company or the Subsidiaries.
(i) The Company and the Transferred Subsidiaries employ commercially have taken all reasonable efforts steps to maintain keep confidential all confidential information that belongs to them or that has been used by them. To the confidentiality Seller’s knowledge, no such confidential information has been disclosed to third parties except in the ordinary course of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Propertybusiness.
(dj) Except as would not, individually The Intellectual Property Rights owned or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred SubsidiariesSubsidiaries are not subject to any Lien.
(k) The Intellectual Property Rights owned or used by the Company or any of the Subsidiaries will not be lost, or rendered liable to termination, by virtue of the acquisition of the Shares by the Purchaser or the performance of the transactions contemplated by this Agreement.
(l) The internal IT systems necessary to conduct the Business are either owned by, or properly licensed or leased to, the Company or a Subsidiary. The Company or the relevant Subsidiary is not in default under the licences or leases and there are no grounds on which they might be terminated. Except as set forth in Schedule 3.15(l), there are no circumstances in which the ownership, benefit or right to use such internal IT systems may be lost by virtue of the acquisition of the Shares by the Purchaser or the performance of the transactions contemplated by this Agreement.
(m) The Company and the Subsidiaries are licensees of all rights in generally commercially available computer software necessary to conduct the Business under licences granted on normal market terms. Neither the Company nor any Subsidiary is in default under any such licences and there are no grounds on which they might be terminated.
(n) The Company and the Subsidiaries comply with all applicable data protection Laws. No notice or allegation has been received by the Company or any of the Subsidiaries from a competent authority or from an individual alleging that the Company or any of the Subsidiaries has not complied with any applicable data protection Laws.
Appears in 1 contract
Intellectual Property and Information Technology. (a) Section 3.11(aExcept as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) of the Parent Disclosure Schedule sets forth a true, correct and complete list of all Registered Intellectual Property owned by the Company or any one of its Subsidiaries own, or license in or otherwise possess the right to use, each of the Transferred Subsidiaries Company Registrations used in or necessary for operation of the Company’s business, (collectivelyii) to the Company’s knowledge, no patent or patent application, copyright registration or application or trademark registration or application of the “Owned Registered Intellectual Property” Company is invalid or unenforceable, (iii) all issuance, renewal, maintenance and together other payments that are or have become due with any other Intellectual Property owned respect to the Company Registrations have been timely paid by or on behalf of the Company or any the relevant Subsidiary and (iv) there are no pending, or to the knowledge of the Transferred Company, threatened, inventorship challenges, reexaminations, cancellations, opposition or nullity proceedings or interferences against the Company or its Subsidiaries with respect to the Company Registrations.
(which for b) Except as would not reasonably be expected to have, individually or in the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies)aggregate, a Company Material Adverse Effect, the “Company or one of its Subsidiaries is the sole and exclusive owner of all Company Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries , free and clear of any Liens (other than any Permitted Liens).
(c) Except as would not reasonably be expected to have, and individually or in the aggregate, a Company Material Adverse Effect: (i) the Company and its Subsidiaries have taken reasonable measures to (A) maintain the confidentiality of and protect the proprietary nature of each item of the Transferred Subsidiaries has the right to use (i) all Company Owned Intellectual Property that the Company intended be retained as confidential, and (B) maintain under confidentiality any confidential information owned by another person with respect to which the Company or any Company Subsidiary has a confidentiality obligation, and (ii) to the Knowledge of ParentCompany’s knowledge, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property each of any third party, (ii) none of the Company or the Transferred its Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid complied with all applicable contractual and enforceable, legal requirements pertaining to information privacy and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Propertysecurity.
(d) Except as would notnot in the aggregate be materially adverse to the Company: (i) to the Company’s knowledge, neither the conduct of the business of the Company and its Subsidiaries, nor the sale or use of any product or service offered by the Company or any of its Subsidiaries infringes or violates, or constitutes a misappropriation of, any Intellectual Property rights of any third party, and (ii) the Company and its Subsidiaries have not received (A) any written complaint, claim or notice or, to the knowledge of the Company, threat of any of the foregoing (including any notification that a license under any patent is or may be required) since July 31, 2015 alleging any such infringement, violation or misappropriation or (B) any written request for indemnification or defense from any reseller, distributor, customer, user or any other third party of the Company or its Subsidiaries related to any such claim or notice regarding the Intellectual Property rights of any third party.
(e) Except as would not be materially adverse to the Company, to the knowledge of the Company, no person or entity (including any current or former employee or consultant of the Company or any of its Subsidiaries) is infringing, violating or misappropriating any of the Company Owned Intellectual Property, or has done so since July 31, 2015.
(f) Except as would not reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company and the Transferred nor any of its Subsidiaries have taken commercially reasonable efforts is a member of or party to maintain the Company IT Systemsany patent pool, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationsindustry standards body, and (iii) trade association or other organization pursuant to the Knowledge rules of the Parent, in the past eighteen (18) months, there has not been which it is obligated to license any material malfunction of the Company IT Systems that has not been remedied Owned Intellectual Property to any person or replaced in all respectsentity.
(eg) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, : (i) the material Company IT Systems used or held for use in the operation each employee of the Business are sufficient Company or any of its Subsidiaries, and each individual independent contractor of the Company or any of its Subsidiaries, has executed a valid and binding written agreement, expressly assigning to conduct the Business as it is conducted Company or a Subsidiary all right, title and interest in any inventions and works of authorship, whether or not patentable, invented, created, developed, authored, conceived or reduced to practice during the term of such employee’s employment or such independent contractor’s work for the Company or the relevant Subsidiary, and all Intellectual Property rights therein, and (ii) as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf none of the Company or any of its Subsidiaries has received any written claim since July 31, 2015 from any employee or individual independent contractor challenging or disputing the Transferred ownership of any such Intellectual Property of the Company or any of its Subsidiaries, or challenging or disputing the ownership of any agreement with the Company or any of its Subsidiaries relating to ownership of any such Intellectual Property.
(h) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (i) since July 31, 2015, there has been no failure, breakdown, loss or impairment of, or to the Company’s knowledge, unauthorized access to or unauthorized use of, any information technology systems of the Company or any of its Subsidiaries, that has resulted in a disruption or interruption in the operation of the business of the Company or any of its Subsidiaries or that has, to the Company’s knowledge, resulted in unauthorized disclosure of any confidential information of the Company or any of its Subsidiaries to any unauthorized person, and (ii) the Company and its Subsidiaries have in place commercially reasonable disaster recovery and business continuity plans and procedures.
Appears in 1 contract
Samples: Merger Agreement (KMG Chemicals Inc)
Intellectual Property and Information Technology. (a) Section 3.11(a3.19(a) of the Parent Xxxx Xxxxxxx Disclosure Schedule Schedules sets forth a trueall patents, correct registered trademarks, registered copyrights, Internet domain name registrations and complete list of all Registered Intellectual Property pending applications for any patents, trademarks and copyrights owned by the Company Xxxx Xxxxxxx or any of the Transferred its Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual PropertyAebi Xxxxxxx IP”). Each item The Registered Aebi Xxxxxxx IP is subsisting and, excluding any pending applications contained therein, to the knowledge of Owned Intellectual Property Aebi Xxxxxxx, is owned by valid and enforceable. All registration and renewal fees for the Company and/or each Registered Xxxx Xxxxxxx IP have been paid when due. None of the Transferred material Xxxx Xxxxxxx Owned IP has been adjudged invalid or unenforceable.
(b) Aebi Xxxxxxx or its Subsidiaries solely own, free and clear of any all Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has or have the right to use (i) use, all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property IT Systems used, held for use in or otherwise necessary in connection with for the Businessconduct of their respective businesses as currently conducted. The consummation of the Transactions and the Debt Financing will not alter, as presently conductedencumber, impair or extinguish any Aebi Xxxxxxx Owned IP or encumber any material Intellectual Property licensed to Aebi Xxxxxxx or any of its Subsidiaries.
(bc) To the Knowledge knowledge of Xxxx Xxxxxxx, each Person, including current and former employees and independent contractors, who has created or developed any material Intellectual Property by or on behalf of Xxxx Xxxxxxx or any of its Subsidiaries has entered into binding, written agreement pursuant to which such Person presently assigns all right, title and interest in such Intellectual Property to Xxxx Xxxxxxx or the Parent, applicable Subsidiary.
(i) There are no pending or, to the operation knowledge of the Business by the Company and the Transferred Xxxx Xxxxxxx, threatened claims, actions, suits, orders or proceedings against Xxxx Xxxxxxx or any of its Subsidiaries does not infringe uponalleging any infringement, misappropriate, dilute misappropriation or violate other violation of the Intellectual Property of any third partyPerson by Xxxx Xxxxxxx or any of its Subsidiaries, and, to the knowledge of Xxxx Xxxxxxx, neither Xxxx Xxxxxxx nor any of its Subsidiaries, nor the operation (including the products and services) of their respective businesses, is infringing, misappropriating or otherwise violating, or has, since the Measurement Date (or, with respect to Patents, during the six (6)-year period ending on the date hereof), infringed, misappropriated or otherwise violated, the Intellectual Property of any Person; and (ii) none of the Company there are no pending or the Transferred Subsidiaries has received any threatened written claim claims, actions, suits, orders or notice from any Person in the past three (3) years that (A) the Company proceedings by Aebi Xxxxxxx or any of its Subsidiaries alleging any infringement, misappropriation or other violation by any Person of any material Xxxx Xxxxxxx Owned IP and to the Transferred Subsidiaries is engaging in any activity that infringes uponknowledge of Xxxx Xxxxxxx, misappropriatesno Third Party has since the Measurement Date, dilutes infringed, misappropriated or otherwise violates violated any material Xxxx Xxxxxxx Owned IP.
(e) To the Intellectual Property rights knowledge of Xxxx Xxxxxxx, neither Xxxx Xxxxxxx nor any of its Subsidiaries uses any open source Software in a manner that would violate any license agreements applicable to such Person that has not been resolvedopen source Software, or (B) disputes the ownership, validity that would grant or enforceability purport to grant to any Person any rights to or immunities under any of the Xxxx Xxxxxxx Owned Intellectual PropertyIP, (iii) or that would require the disclosure of any source code included in the Xxxx Xxxxxxx Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights IP. None of the Company Software included in the Aebi Xxxxxxx Owned IP is subject to any agreement with any Person under which Xxxx Xxxxxxx or any of its Subsidiaries has deposited, or could be required to deposit, into escrow the Transferred Subsidiaries in source code of such Software and no such source code has been released to any Intellectual Property owned Person, or is entitled to be released to any Person, by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rightsescrow agent.
(cf) The Company Xxxx Xxxxxxx and the Transferred each of its Subsidiaries employ has taken commercially reasonable efforts measures to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation in confidence all Trade Secrets that are part of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title Aebi Xxxxxxx Owned IP and third party confidential information that Xxxx Xxxxxxx or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Propertyits Subsidiaries are obliged to protect pursuant to a non-disclosure agreement.
(dg) Except The Aebi Xxxxxxx IT Systems operate and perform in a manner that permits Aebi Xxxxxxx and its Subsidiaries to conduct their respective businesses as currently conducted. Since the Measurement Date: (i) except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Aebi Xxxxxxx Material Adverse Effect, neither Aebi Xxxxxxx nor any of its Subsidiaries has experienced any Aebi Xxxxxxx Security Breach (iincluding any malfunction, cyber-attacks or other material disruption or impairment of Aebi Xxxxxxx IT Systems) the Company and the Transferred conduct of Xxxx Xxxxxxx and its Subsidiaries’ business has complied with all Applicable Law governing or otherwise relating to the Aebi Xxxxxxx IT Systems, the protection, security, use, destruction, or transfer of Aebi Xxxxxxx Confidential Data, and Aebi Xxxxxxx Security Breach notification obligations; (ii) each of Aebi Xxxxxxx and its Subsidiaries have maintained adequate security measures to protect, from unauthorized use, access, interruption, modification or corruption, all Aebi Xxxxxxx Confidential Data (including all Personal Information contained therein) under its control or in its possession; (iii) Aebi Xxxxxxx and each of its Subsidiaries have taken commercially reasonable efforts actions, consistent with industry standards and Applicable Law, to maintain monitor and protect the Company confidentiality, integrity, availability, continuous operation, redundancy and security of the Aebi Xxxxxxx IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationsincluding implementing and maintaining appropriate backup, business continuity and disaster recovery policies, procedures and facilities, and Software support arrangements; (iiiiv) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been Aebi Xxxxxxx and its Subsidiaries have conducted commercially reasonable data and system security testing or audits and have resolved or remediated any material malfunction of the Company IT Systems that has not been remedied data or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own system security issues or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary vulnerabilities identified; and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiaries.v)
Appears in 1 contract
Samples: Merger Agreement (Shyft Group, Inc.)
Intellectual Property and Information Technology. (a) Section 3.11(a5.14(a) of the Parent Company Disclosure Schedule Letter sets forth forth, as of the date hereof, a true, correct and complete list of of: (i) all Company Registered Intellectual Property owned by (specifying for each item (A) the Company or any of record owner and, if different from the Transferred Subsidiaries (collectivelyrecord owner, the “Owned Registered Intellectual Property” beneficial owner, (B) the jurisdiction in which such item has been issued, registered or filed, (C) the issuance, registration or application date and together with any other Intellectual Property owned by (D) the Company issuance, registration or any of application number, in each case, as applicable); and (ii) all material unregistered Trademarks included in the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned All renewal, maintenance and other necessary filings and fees due and payable prior to the date hereof to any relevant Governmental Authority or Internet domain name registrar to maintain all Company Registered Intellectual Property in full force and effect have been timely submitted or paid in full. All Company Registered Intellectual Property is owned by subsisting and to the Company’s Knowledge, all issuances and registrations included in the Company and/or each Registered Intellectual Property are valid and enforceable in accordance with applicable Law.
(b) The Company is the sole and exclusive owner of the Transferred Subsidiaries all rights, title and interest in and to all Owned Intellectual Property, free and clear of any all Liens (other than Permitted Liens). The Company has valid and enforceable rights to use, pursuant to a written license, sublicense, agreement or permission, all Licensed Intellectual Property, free and the Company and each clear of the Transferred Subsidiaries has the right to use all Liens (i) all other than Permitted Liens). The Owned Intellectual Property and (ii) to the Knowledge of Parentsuch Licensed Intellectual Property collectively constitute all Intellectual Property used in, and necessary and sufficient for, the other Intellectual Property used, held for use or otherwise necessary in connection with conduct of the Businessbusiness of the Company, as presently conducted.
(bc) To the Knowledge None of the ParentCompany, (i) the operation conduct of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none business of the Company or the Transferred Subsidiaries practice by the Company of any Owned Intellectual Property has, in the past six years, infringed, misappropriated (or resulted from a misappropriation of), diluted or otherwise violated, or is infringing, misappropriating (or results from the misappropriation of), diluting or otherwise violating any Intellectual Property of any Person. Except as set forth on Section 5.14(c) of the Company Disclosure Letter, the Company has not received any written claim or notice from any Person in the past three years any written (3or, to the Company’s Knowledge, other) years that notice, charge, complaint, claim or other assertion: (Ai) of any infringement, misappropriation, dilution or other violation of any Intellectual Property of any Person; (ii) inviting the Company or to take a license under any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such any Person in a manner that has not been resolved, could reasonably be construed as a notice of potential infringement; or (Biii) disputes challenging the ownership, use, validity or enforceability of any Owned Intellectual Property or Licensed Intellectual Property. Except as set forth on Section 5.14(c) of the Company Disclosure Letter, to the Company’s Knowledge, in the past six years, no other Person has infringed, misappropriated, diluted or violated, or is infringing, misappropriating, diluting or violating, any material Owned Intellectual Property or any material Licensed Intellectual Property exclusively licensed to the Company. None of the Owned Intellectual PropertyProperty or, (iii) to the Owned Registered Company’s Knowledge, Licensed Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of exclusively licensed to the Company is subject to any pending or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringementoutstanding order, misappropriationsettlement, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets consent order or other confidential information. The consummation disposition of any dispute that adversely restricts the transactions contemplated under this Agreement will not impairuse, in any material respect, the right, title transfer or interest of the Company or the Transferred Subsidiaries inregistration of, or their respective rights to useadversely affects the validity or enforceability of, any of the Owned such Intellectual Property.
(d) Except as would notNo past or present director, individually officer or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction employee of the Company IT Systems that owns (or has any claim or any right (whether or not been remedied currently exercisable) to any ownership interest, in or replaced in all respects.
(eto) To the Knowledge any Owned Intellectual Property. Each of the Parentpast and present directors, officers, employees, consultants and independent contractors of the Company and the Transferred Subsidiaries own who has been or have the right to use the material Company IT Systems used is engaged in creating or held developing for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company any material Intellectual Property in the course of such Person’s employment or engagement has executed and delivered a written agreement, pursuant to which such Person has (i) agreed to hold all confidential information of the Company in confidence both during and after such Person’s employment or retention, as applicable, and (ii) to the extent permitted by applicable Laws, presently assigned to the Company all of such Person’s rights, title and interest in and to all Intellectual Property created or developed for the Company in the course of such Person’s employment or retention thereby (each, an “Invention Assignment Agreement”). To the Company’s Knowledge, there is no material uncured breach by any such Person with respect to material Intellectual Property under any such Invention Assignment Agreement.
(e) No funding, facilities or personnel of any Governmental Authority or any university, college, research institute or other educational institution has been or is being used to create, in whole or in part, any Owned Intellectual Property or, to the Company’s Knowledge, Licensed Intellectual Property exclusively licensed to the Company.
(f) The Company has taken commercially reasonable steps to maintain the secrecy and confidentiality of all Trade Secrets included in the Owned Intellectual Property and all Trade Secrets of any Person to whom the Company has a confidentiality obligation with respect to such Trade Secrets. No Trade Secret that is material to the business of the Transferred SubsidiariesCompany has been authorized by the Company to be disclosed or, to the Company’s Knowledge, has been actually disclosed to any Person other than (i) pursuant to a written agreement restricting the disclosure and use of such Trade Secret or (ii) to a Person who otherwise has a duty to protect such Trade Secret.
(g) None of the source code for any Owned Company Software has been licensed or provided to, or used or accessed by, any Person (other than employees or contractors of the Company who have entered into written agreements restricting the disclosure and use of such source code). The Company is not a party to any source code escrow Contract or any other Contract (or a party to any Contract obligating the Company to enter into a source code escrow Contract or other Contract) requiring the deposit of any source code or related materials for any Owned Company Software.
Appears in 1 contract
Samples: Merger Agreement (Skillsoft Corp.)
Intellectual Property and Information Technology. (a) Section 3.11(a4.19(a) of the Parent Company Disclosure Schedule Letter sets forth a trueall patents, correct registered trademarks, registered copyrights, Internet domain name registrations and complete list of all Registered Intellectual Property pending applications for any patents, trademarks and copyrights owned by or registered in the name of the Company or any of the Transferred its Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual PropertyIP”). Each item The Registered Company IP is subsisting and has not been abandoned, cancelled, lapsed or expired, and excluding any pending applications contained therein, to the knowledge of Owned Intellectual Property the Company, is owned by valid and enforceable.
(b) The Company and its Subsidiaries own all right, title and interest in and to the Company and/or each of the Transferred Subsidiaries Owned IP free and clear of any all Liens (other than Permitted Liens). The Company Owned IP has not been the subject of any Proceeding challenging its validity, and enforceability, ownership or otherwise seeking to cancel or narrow the scope thereof. The Company and each of the Transferred its Subsidiaries has the right own or have valid rights to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use in or otherwise necessary in connection with the Businessfor their respective businesses, as presently conductedcurrently conducted (collectively, the “Company IP”). The foregoing representation and warranty is not intended to be a representation or warranty regarding the absence of infringement, misappropriation or other violation of Intellectual Property, which is addressed in Section 4.19(c) below.
(bi) To There are no pending or, to the Knowledge knowledge of the ParentCompany, (i) threatened claims against the operation Company or any of its Subsidiaries alleging any infringement, misappropriation or other violation of the Business Intellectual Property of any Person by the Company or any of its Subsidiaries, and, to the knowledge of the Company, the operations of the businesses (including the products and services) of the Transferred Company and its Subsidiaries does do not infringe uponinfringe, misappropriate, dilute misappropriate or otherwise violate the Intellectual Property of any third party, Person; and (ii) none of the Company there are no pending or the Transferred Subsidiaries has received any threatened written claim or notice from any Person in the past three (3) years that (A) claims by the Company or any of its Subsidiaries alleging any infringement, misappropriation or other violation by any Person of any material Company Owned IP and to the Transferred Subsidiaries is engaging knowledge of the Company, no Third Party has since the Measurement Date, infringed, misappropriated or otherwise violated any material Company Owned IP in any activity that infringes upon, misappropriates, dilutes or otherwise violates respect.
(d) To the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability knowledge of the Company, the Company and its Subsidiaries do not use any open source Software in a manner that would (i) violate any license agreements applicable to such Software, (ii) grant or purport to grant to any Person any rights to or immunities under any of the Company Owned Intellectual PropertyIP, (iii) require the disclosure of source code associated with any Company Owned Registered Intellectual Property is subsisting, valid and enforceable, and IP or (iv) no Person is infringing upon, diluting, violating prohibit or misappropriating limit the rights receipt of the consideration in connection with sublicensing or distributing any Company or any Owned IP independent of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rightssuch Software.
(ce) The Company and the Transferred its Subsidiaries employ have taken commercially reasonable efforts measures to maintain in confidence (i) all Trade Secrets and confidential information and data, including with respect to Company Owned IP of a confidential and proprietary nature and (ii) third party confidential information that the confidentiality Company or its Subsidiaries are obliged to protect pursuant to a non-disclosure agreement.
(f) To the extent that Company Owned IP was either conceived or first reduced to practice in performance of their respective trade secrets any Contract funded by a Governmental Authority or developed (in whole or in part) with funding (directly or indirectly) from a Governmental Authority, the Company and its Subsidiaries have timely made all required invention disclosures with respect to Registered Company IP developed with funding from a Governmental Authority. To the knowledge of the Company, no Governmental Authority, or other confidential informationPerson on behalf of any Governmental Authority, has received unlimited rights or government purpose rights (as each term is defined in DFARS 52.227-7014) or broader rights in any Company Owned IP.
(g) Software included in the Company IP that has been provided to customers is substantially is free from material defects and bugs, and substantially conforms to the applicable specifications, documentation and samples therefor. The consummation of the transactions transaction(s) contemplated under by this Agreement will not impair, in violate any material respect, the right, title representations or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published commitments made by the Company or the applicable Transferred Subsidiary and (iii) nor any of its Subsidiaries with respect to the Knowledge protection of the Parent, in the past three (3) years, there has not been any data security breach confidential or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred SubsidiariesPersonal Information.
Appears in 1 contract
Samples: Merger Agreement (PAE Inc)
Intellectual Property and Information Technology. (a) Section 3.11(aSchedule 4.8(a) of the Parent Company Disclosure Schedule sets forth a Schedules contains true, correct complete, and complete list accurate lists of (i) all registered and applied for Intellectual Property (collectively, “Company Registered Intellectual Property”), and (ii) all material unregistered Marks and all material unregistered Proprietary Software, in each case included in Owned Intellectual Property. All Owned Intellectual Property is subsisting, valid, and enforceable. All necessary documents and certificates in connection with the Company Registered Intellectual Property owned have been filed with, and all relevant fees have been paid in full and on time to, the relevant Governmental Entity, and all other steps required for the continued registration of the Company Registered Intellectual Property have been taken, as the case may be, for the purposes of perfecting, prosecuting, and maintaining the Company Registered Intellectual Property.
(b) The Company or its applicable Subsidiary (i) exclusively and solely owns and possesses all right, title and interest in and to all of the Owned Intellectual Property, free and clear of any Encumbrances (other than Permitted Encumbrances), and (ii) owns or has a valid and continuing right to use, as used in the Business, all other Intellectual Property and IT Systems used (or held for use) in or otherwise necessary for the conduct of the Business, and none of the foregoing (i) or (ii) will be adversely impacted by (nor will require the payment or grant of additional amounts or consideration as a result of or the consent, approval or authorization of, notification to or waiver from any Person) the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. Neither the Company nor any of its Subsidiaries (nor any Owned Intellectual Property) is subject to any outstanding Order, settlement agreement, covenant not to sue, consent, or stipulation which (x) permits third Person to use any of the Owned Intellectual Property without payment, or (y) materially restricts or impairs the Company’s or any of its Subsidiaries’ rights in any of the Owned Intellectual Property, or (z) except as required in a written Contract listed in Schedule 4.8(b)(z) of the Company Disclosure Schedules, requires any future payment by the Company or any of the Transferred its Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with to any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rightsPerson.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets Each Person (including each past or present employee, founder, director, officer, advisor, consultant, independent contractor, service provider or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title third party) that has invented or interest of the Company otherwise contributed to or the Transferred Subsidiaries in, participated (or their respective rights does or may contribute to use, any of the Owned Intellectual Property.
(dor participate) Except as would not, individually or in the aggregatecreation, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied conception or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure development of any Protected Information owned, stored, maintained or controlled by Intellectual Property for or on behalf of the Company or any of its Subsidiaries (including for any of Company Products or Proprietary Software) (each, a “Contributor”), whether individually or jointly with others, has executed and delivered to the Transferred Company or its Subsidiary a valid and enforceable written Contract that presently and validly assigns to the Company or its Subsidiary all right, title and interest in or to such Intellectual Property to the extent that all such right, title and interest did not fully vest in the Company or in its Subsidiary by operation of applicable Law. Except as would not be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries or the conduct of the Business, no current or former Contributor was or is under any obligation to assign or license any Intellectual Property developed for, or on behalf of, the Company or any of its Subsidiaries or that is used by or necessary for the Company or any of its Subsidiaries or its or their Businesses to a former or current (other than the Company and its Subsidiaries) employer, or other Person, nor is the ownership of any Owned Intellectual Property otherwise affected by the prior or current employment or engagement of any such Contributor (to a Person other than the Company or its Subsidiary).
(d) The Company and each of its Subsidiaries (i) have taken commercially reasonable measures consistent with standard practices in the Industry in which the Company and its Subsidiaries operate to protect the secrecy and confidentiality of all trade secrets and all material confidential information included in the Owned Intellectual Property or otherwise in possession of the Company or any of its Subsidiaries (including the source code for all Proprietary Software and Company Products) from unauthorized disclosure and use; and (ii) except as would not be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries or the conduct of the Business, have executed valid and enforceable written Contracts (substantially on the forms made available to Parent) with all Persons (including all past and present employees and contractors) privy to any trade secrets or material confidential information of the Company and any of its Subsidiaries pursuant to which such Persons have agreed to hold all such information in confidence both during and after their engagement or employment. Except as would not be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries or the conduct of the Business, no trade secret or other material confidential information of the Company or any of its Subsidiaries has been disclosed (or authorized or threatened to be disclosed) to any third Person other than to recipients bound by sufficiently protective contractual, legal, fiduciary, or professional obligations of confidentiality or pursuant to the terms of a valid, adequately protective, written confidentiality obligations, with such Person that (y) obligates such Person to maintain the confidentiality thereof, and (z) is or was in full force and effect at the time of any such disclosure and has not been materially breached.
(e) No funding, facilities, personnel, or resources of a Governmental Entity, university, college, or other educational institution or research center (each, a “Research Sponsor”) was used in connection with the development, creation, marketing, distribution, sale, offer for sale, or other commercialization of any Owned Intellectual Property, and no Research Sponsor has any right, title, or interest in or to any Owned Intellectual Property (whether express or implied, or contractual or by operation of Law) in any material respect. Neither the Company nor any of its Subsidiaries has applied for or received any financial assistance from any Governmental Entity that would adversely affect the Company’s or any of its Subsidiaries’ rights in any Owned Intellectual Property. Except as would not be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries or the conduct of the Business, no current or former Contributor performed services for any Research Sponsor, during a period of time during which such Contributor was performing services for the Company or any of its Subsidiaries. No patent that is Company Registered Intellectual Property is subject to any compulsory license or patent pool.
(i) None of the Company or its Subsidiaries, nor the conduct of their Businesses (including the use, marketing, licensing, offer for sale, sale, distribution, importation, and commercialization of any Company Products or any Owned Intellectual Property used in connection therewith) did in the past six (6) years, or does, infringe, misappropriate, violate, dilute or otherwise conflict with any Intellectual Property rights of any third party nor commit or constitute defamation, unfair competition or trade practices.
(ii) Except as would not be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries or the conduct of the Business, there is no pending (or, to the Knowledge of the Company, threatened in writing) Action (for clarity, including interference, derivation, reissue, reexamination, opposition, and cancellation proceeding) in any jurisdiction, and neither the Company nor any of its Subsidiaries has received in the past six (6) years any written notice or claim (including any invitation or offer to license) either (A) alleging any of the foregoing described in (f)(i) or (B) challenging the use, ownership, validity or enforceability of any Owned Intellectual Property or (C) requiring indemnification of any Person by the Company or any of its Subsidiaries with regard to any Owned Intellectual Property, for which notice of such indemnification has been received by the Company or its Subsidiary.
(iii) To the Knowledge of the Company, no third party is infringing, misappropriating, violating, diluting or otherwise conflicting with any Owned Intellectual Property in any manner that would reasonably be expected to be, individually or in the aggregate, materially adverse to the Company and its Subsidiaries or the conduct of the Business, and no Action involving the infringement, misappropriation, violation, or dilution of or conflict with any third party Intellectual Property or other proprietary right has been brought against any Person by the Company or any of its Subsidiaries.
(g) Except for software repositories used in the ordinary course of Company’s business, none of the Company nor any of its Subsidiaries has delivered the Source Code of any Proprietary Software to any escrow agent or other Person, and no Person other than the Company or its Subsidiaries has been granted a license or access to, or has an actual or contingent license or right to access or possess a copy in any form of any Source Code for any Proprietary Software (including pursuant to escrow or similar agreements or arrangements). All such Source Code is in the sole possession of the Company or its Subsidiaries and has been maintained as strictly confidential.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gambling.com Group LTD)
Intellectual Property and Information Technology. (a) Section 3.11(a5.21(a) of the Parent Company Disclosure Schedule sets forth contains a true, correct true and complete list list, as of the date of this Agreement, of all Registered Intellectual Property owned by Company Products.
(b) The Company and its Subsidiaries own or otherwise hold all rights in all Company IP necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or any of the Transferred Subsidiaries as currently proposed to be conducted (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologiesNecessary IP”), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under by this Agreement will not impairmaterially (i) alter, restrict, encumber, impair or extinguish any rights in any material respectNecessary IP, or (ii) result in the right, title or interest creation of any Lien with respect to any of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual PropertyIP (other than Permitted Liens).
(dc) Except Section 5.21(c) of the Company Disclosure Schedule lists and describes the status, as would notof the date of this Agreement, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, of (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systemseach Proceeding (other than an investigation or audit), (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationseach written communication related to a threatened Proceeding (other than an investigation or audit), and (iii) to the Knowledge of the ParentCompany, each other threatened Proceeding (other than an investigation or audit), in each case which threat was received in the past eighteen last three (183) monthsyears prior to the date of this Agreement alleging infringement, there has not been misappropriation or any material malfunction other violation of any Intellectual Property rights of any Person by the Company or any of its Subsidiaries or by any Company Products, or challenging the scope, ownership, validity, or enforceability of any Company Owned IP or of the Company IT Systems and its Subsidiaries’ rights under Company Licensed IP that is Necessary IP, regardless of whether such Proceeding or threatened Proceeding has been settled, withdrawn or otherwise resolved. Neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property rights of any Person or, except in connection with the Proceedings set forth on Section 5.21(c) of the Company Disclosure Schedule, received any notice of alleged infringement or potential infringement of any such rights.
(d) (i) No Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Products or other products or services utilizing Company Owned IP, in each case other than (A) Company Licensed IP that is licensed non-exclusively to the Company or its Subsidiaries and is incorporated or embodied in Company Products (but for clarity not been remedied the Company Products themselves) and (B) non-exclusive distributors or replaced resellers of Company Products engaged by the Company or any of its Subsidiaries in all respectsthe ordinary course of business, and (ii) there are no restrictions binding on the Company or any Subsidiary respecting the disclosure, use, license, transfer or other disposition of any Company Owned IP or Company Products (other than license restrictions set out in the license agreements entered into by the Company and its Subsidiaries in the ordinary course of business for Company Licensed IP that is incorporated or embodied in the Company Products).
(e) To Section 5.21(e)(i) of the Company Disclosure Schedule contains a true and complete list, as of the date of this Agreement, of all Company Registered IP. The Company and its Subsidiaries have taken all actions reasonably necessary to maintain and protect all Company Registered IP other than Company Registered IP that the Company or its Subsidiaries have made the affirmative business decision to abandon or cancel, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to office actions and disclosure of any required information, and recording all assignments (and licenses where required) of the Registered IP with the appropriate Governmental Authorities. Section 5.21(e)(ii) of the Company Disclosure Schedule includes a true and complete list as of the date of this Agreement of all material actions that must be taken within three hundred sixty five (365) calendar days of the date hereof with respect to any of the Company Registered IP. The Company and each of its Subsidiaries have complied in all material respects with all applicable notice and marking requirements for the Company Registered IP. None of the Company Registered IP has been adjudged invalid or unenforceable in whole or part and, to the Knowledge of the ParentCompany, none of the Company Registered IP is invalid or unenforceable.
(f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, to the Knowledge of the Company, the Company and its Subsidiaries have not made any of their material trade secrets or other material confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the Transferred confidentiality of such information or materials.
(g) The Company and its Subsidiaries own have obtained from all parties (including employees and current or former consultants and subcontractors) who have the right to use the created any portion of, or otherwise who would have any rights in or to, any material Company IT Systems Owned IP or any Company Product, valid and enforceable written assignments of any such Intellectual Property, work, invention, improvement or other rights to the Company and its Subsidiaries and have made available true and complete copies of the Company’s and its Subsidiaries’ current standard forms of such assignments to Parent. No employee, consultant or former consultant of the Company or any of its Subsidiaries has ever excluded any Intellectual Property from any written assignment executed by any such Person in connection with work performed for or on behalf of the Company or any of its Subsidiaries. All amounts payable by the Company or any of its Subsidiaries to consultants and former consultants have been paid in full, other than current accounts payable that are not delinquent.
(h) Section 5.21(h) of the Company Disclosure Schedule contains a complete and accurate list, as of the date of this Agreement, of (i) all material third-party Intellectual Property (other than Third Party Software and Third Party Hardware) sold with, incorporated into, distributed in connection with or used in the development of any Company Product (including any Company Product currently under development) and (ii) all other material third-party Intellectual Property (other than Third Party Software and Third Party Hardware) used or held for use in for any purpose by the operation Company or any of its Subsidiaries that is material to the business of the Business. Except Company and its Subsidiaries taken as would nota whole
(i) Section 5.21(i) of the Company Disclosure Schedule contains a complete and accurate list of all material Third Party Software, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, setting forth for each such item (i) the material Company IT Systems used or held for use in the operation name and version of the Business are sufficient to conduct the Business as it is conducted as of the date hereofsuch item, (ii) to the Knowledge name of the Parentowner and/or licensor of such item, the Company’s (iii) all Contracts, licenses and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by other agreements pursuant to which the Company or any of its Subsidiaries holds rights to such item, (iv) the applicable Transferred Subsidiary and Company Product(s), including version numbers, to which such item relates, if any, (iiiv) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled whether such item is used internally by or on behalf of the Company or any of its Subsidiaries, (vi) whether such item is distributed by or on behalf of the Transferred Company or any of its Subsidiaries (whether on a standalone basis or as an embedded or bundled component) and, if so, whether such item is distributed in source, binary or other form, (vii) whether such item is hosted, offered as a service or made available in a service bureau or in any similar manner by or on behalf of the Company or any of its Subsidiaries (whether on a standalone basis or as an embedded or bundled component), (viii) whether the Company or any Subsidiary permits any Third Party to host, offer as a service or make available in a service bureau or in any similar manner such item (whether on a standalone basis or as an embedded or bundled component), (ix) whether such item has been modified by or on behalf of the Company or any of its Subsidiaries, (x) whether such item is used by or on behalf of the Company or any of its Subsidiaries to generate code or other material, and if so, a description (consistent with the disclosure requirements under clauses (v) through (ix) above) of the use, modification, hosting and/or distribution of such generated code or other material, (xi) a summary of the Company’s and its Subsidiaries’ payment history in respect of such item, as well as a summary of anticipated future payments in respect of such item, including license fees, renewal fees, maintenance fees, support fees and royalties, (xii) whether such item is used, held for use or required (or generates code or other material that is used, held for use or required) to satisfy any obligation under any support agreement or maintenance agreement, and (xiii) any rights by a Third Party to audit or review any financial, license or royalty information, if any, with respect thereto. For purposes of this Section 5.21(i), Company Product includes any Company Product under development. Neither the Company nor any of its Subsidiaries has been subjected to an audit of any kind in connection with any license or other agreement pursuant to which the Company or any of its Subsidiaries hold rights to any Third Party Software, nor received any notice of intent to conduct any such audit. Neither the Company nor any Subsidiary has incorporated into any Company Product or otherwise accessed, used, modified or distributed any Third Party Software, in whole or in part, in a manner that may (A) require any Company IP to be licensed, sold, disclosed, distributed, hosted or otherwise made available, including in source code form and/or for the purpose of making derivative works, for any reason, (B) grant, or require the Company or any of its Subsidiaries to grant, the right to decompile, disassemble, reverse engineer or otherwise derive the source code or underlying structure of any Company IP or (C) limit in any manner the ability to charge license fees or otherwise seek compensation in connection with marketing, licensing or distribution of any Company IP and neither the Company nor any of its Subsidiaries has any plans to do any of the foregoing. All information set forth in Section 5.21(i) of the Company Disclosure Schedule is true and complete.
(j) The Company Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such Company Products by or for the Company or any of its Subsidiaries or its respective authorized users, or any other associated Software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses,” “worms,” “time bombs” and/or “back doors”).
(k) Neither the Company nor any of its Subsidiaries has (i) transferred ownership of, or granted any exclusive license with respect to, any Company Owned IP to any other Person, (ii) granted any customer the right to use any Company Product or portion thereof on anything other than a non-exclusive basis or for anything other than such customer’s internal business purposes, or (iii) granted any Third Party the right to access or use any source code other than upon the occurrence of specified release events pursuant to a written source code escrow agreement, and no such release event has ever occurred or been claimed to have occurred.
(l) None of the Company’s or any of its Subsidiaries’ agreements (including any agreement for the performance of professional services by or on the behalf of the Company or any of its Subsidiaries) confers upon any Person other than the Company or any of its Subsidiaries any ownership right, exclusive license or other exclusive right with respect to any Intellectual Property developed or delivered in connection with such agreement.
(m) No funding, facilities or personnel of any educational institution or Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company Owned IP or any portion of a Company Product that is not licensed to the Company or one of its Subsidiaries from a Third Party that is not an educational institution or Governmental Authority. Neither the Company nor any of its Subsidiaries is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any Third Party any license or right to such Company IP. Section 5.21(m) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) any and all grants and similar funding received by the Company or any of its Subsidiaries (including their respective predecessors), including the name of the granting authority and the status and material terms thereof and (ii) any standards bodies or similar organizations of which the Company or any of its Subsidiaries (or any of their predecessors) has ever been a member, promoter or contributor.
(n) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct their respective businesses as currently conducted and, to the Knowledge of the Company, no Person has gained unauthorized access to or otherwise interfered with the operation of any IT Asset. In all matters related to the business of the Company and its Subsidiaries, the Company and each of its Subsidiaries has implemented and followed reasonable security, backup and disaster recovery processes consistent with applicable industry best practices.
Appears in 1 contract
Samples: Merger Agreement (CERNER Corp)
Intellectual Property and Information Technology. (a) Section 3.11(a4.20(a) of the Parent Company Disclosure Schedule sets forth contains a true, correct true and complete list list, as of the date of this Agreement, of all Registered Company Products.
(b) The Company and its Subsidiaries own or otherwise hold all rights in all Company IP necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or as currently proposed to be conducted (the “Necessary IP”), free and clear of any Liens. The consummation of the transactions contemplated by this Agreement will not (i) alter, restrict, encumber, impair or extinguish any rights in any Necessary IP, or (ii) result in the creation of any Lien with respect to any of the Company IP.
(c) Section 4.20(c) of the Company Disclosure Schedule lists and describes the status of each Proceeding or, to the Knowledge of the Company, threatened Proceeding (i) alleging infringement, misappropriation or any other violation of any Intellectual Property rights of any Person by the Company or any of its Subsidiaries or by any Company Products, or (ii) challenging the scope, ownership, validity, or enforceability of any Company IP owned by the Company or any of its Subsidiaries or of the Transferred Company and its Subsidiaries’ rights under the Necessary IP, regardless of whether such Proceeding or threatened Proceeding has been settled, withdrawn or otherwise resolved. Neither the Company nor any of its Subsidiaries (collectivelyhas infringed, the “Owned Registered Intellectual Property” and together with misappropriated or otherwise violated any other Intellectual Property rights of any Person or, except in connection with the Proceedings set forth on Section 4.20(c) of the Company Disclosure Schedule, received any notice of alleged infringement or potential infringement of any such rights.
(d) (i) No Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Products or other products or services utilizing Company IP that is owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies)its Subsidiaries, the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of there are no restrictions binding on the Company or any Subsidiary respecting the Transferred Subsidiaries has received disclosure, use, license, transfer or other disposition of any written claim or notice from any Person in the past three (3) years that (A) Company IP owned by the Company or any of its Subsidiaries.
(e) Section 4.20(e)(i) of the Transferred Company Disclosure Schedule contains a true and complete list, as of the date of this Agreement, of all Company Registered IP. The Company and its Subsidiaries have taken all actions reasonably necessary to maintain and protect all Company Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to office actions and disclosure of any required information, and recording all assignments (and licenses where required) of the Registered IP with the appropriate Governmental Authorities. Section 4.20(e)(ii) of the Company Disclosure Schedule includes a true and complete list as of the date of this Agreement of all material actions that must be taken within one hundred eighty (180) days of the date hereof with respect to any of the Company Registered IP. The Company and each of its Subsidiaries have complied in all material respects with all applicable notice and marking requirements for the Company Registered IP. None of the Company Registered IP has been adjudged invalid or unenforceable in whole or part and, to the Knowledge of the Company, none of the Company Registered IP is engaging invalid or unenforceable.
(f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any activity confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their material trade secrets or other material confidential or proprietary information that infringes uponthey intended to maintain as confidential (including source code with respect to Company Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials.
(g) The Company and its Subsidiaries have obtained from all parties (including employees and current or former consultants and subcontractors) who have created any portion of, misappropriates, dilutes or otherwise violates the Intellectual Property who would have any rights of such Person that has not been resolvedin or to, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsistingany Company IP, valid and enforceableenforceable written assignments of any such work, invention, improvement or other rights to the Company and (iv) no Person is infringing uponits Subsidiaries and have delivered true and complete copies of the Company’s and its Subsidiaries’ standard forms of such assignments to Parent. No employee, diluting, violating consultant or misappropriating the rights former consultant of the Company or any of the Transferred its Subsidiaries in has ever excluded any Intellectual Property owned by any created as a result of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets work performed for or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest on behalf of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of its Subsidiaries from any written assignment executed by any such Person. All amounts payable by the Owned Intellectual PropertyCompany or any of its Subsidiaries to consultants and former consultants have been paid in full, other than current accounts payable that are not delinquent.
(dh) Except as would notSection 4.20(h) of the Company Disclosure Schedule contains a complete and accurate list of (i) all third-party Intellectual Property (other than Third Party Software) sold with, individually incorporated into, distributed in connection with or used in the aggregatedevelopment of any Company Product (including any Company Product currently under development) and (ii) all other third-party Intellectual Property (other than Third Party Software) used or held for use for any purpose by the Company or any of its Subsidiaries that is material to the business of the Company and its Subsidiaries taken as a whole.
(i) Section 4.20(i) of the Company Disclosure Schedule contains a complete and accurate list of all Third Party Software, reasonably be expected to have a Company Material Adverse Effect, setting forth for each such item (i) the Company name and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systemsversion of such item, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationsname of the owner and/or licensor of such item, and (iii) all licenses and other agreements pursuant to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by which the Company or any of its Subsidiaries holds rights to such item, (iv) the applicable Transferred Subsidiary and Company Product(s), including version numbers, to which such item relates, if any, (iiiv) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled whether such item is used internally by or on behalf of the Company or any of its Subsidiaries, (vi) whether such item is distributed by or on behalf of the Transferred Company or any of its Subsidiaries (whether on a standalone basis or as an embedded or bundled component) and, if so, whether such item is distributed in source, binary or other form, (vii) whether such item is hosted, offered as a service or made available in a service bureau or in any similar manner by or on behalf of the Company or any of its Subsidiaries (whether on a standalone basis or as an embedded or bundled component), (viii) whether the Company or any Subsidiary permits any Third Party to host, offer as a service or make available in a service bureau or in any similar manner such item (whether on a standalone basis or as an embedded or bundled component), (ix) whether such item has been modified by or on behalf of the Company or any of its Subsidiaries, (x) whether such item is used by or on behalf of the Company or any of its Subsidiaries to generate code or other material, and if so, a description (consistent with the disclosure requirements under clauses (v) through (ix)) of the use, modification, hosting and/or distribution of such generated code or other material, (xi) a summary of the Company’s and its Subsidiaries’ payment history in respect of such item during the four (4) consecutive fiscal quarters ended September 30, 2012, (xii) whether such item is used or required (or generates code or other material that is used or required) to satisfy any obligation under any support agreement or maintenance agreement, and (xiii) solely with respect to any such item in respect of which the Company or any Subsidiary made aggregate payments in excess of $25,000 during the four (4) fiscal quarters ended September 30, 2012, any rights by a Third Party to audit or review any financial, license or royalty information, if any, with respect thereto. For purposes of this Section 4.20(i) only, Company Product includes any Company Product under development. Neither the Company nor any of its Subsidiaries has been subjected to an audit of any kind in connection with any license or other agreement pursuant to which the Company or any of its Subsidiaries hold rights to any Third Party Software, nor received any written notice of intent to conduct any such audit. Neither the Company nor any Subsidiary has incorporated into any Company Product or otherwise accessed, used, modified or distributed any Third Party Software, in whole or in part, in a manner that may (A) require any Company IP to be licensed, sold, disclosed, distributed, hosted or otherwise made available, including in source code form and/or for the purpose of making derivative works, for any reason, (B) grant, or require the Company or any of its Subsidiaries to grant, the right to decompile, disassemble, reverse engineer or otherwise derive the source code or underlying structure of any Company IP or (C) limit in any manner the ability to charge license fees or otherwise seek compensation in connection with marketing, licensing or distribution of any Company IP and neither the Company nor any of its Subsidiaries has any plans to do any of the foregoing. All information set forth in Section 4.20(i) of the Company Disclosure Schedule is true and complete.
(j) The Company Products as delivered by the Company and its Subsidiaries do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such Company Products by or for the Company or any of its Subsidiaries or its respective authorized users, or any other associated Software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses,” “worms,” “time bombs” and/or “back doors”).
(k) Neither the Company nor any of its Subsidiaries has (i) transferred ownership of, or granted any exclusive license with respect to, any Company IP owned or purported to be owned by the Company or any of its Subsidiaries to any other Person, (ii) granted any end customer the right to use any Company Product or portion thereof on anything other than a non-exclusive basis or for anything other than such customer’s internal business purposes, or (iii) granted any Third Party the right to access or use any source code other than upon the occurrence of specified release events pursuant to a written source code escrow agreement, and no such release event has ever occurred or been claimed to have occurred.
(l) None of the Company’s or any of its Subsidiaries’ agreements (including any agreement for the performance of professional services by or on the behalf of the Company or any of its Subsidiaries) confers upon any Person other than the Company or any of its Subsidiaries any ownership right, exclusive license or other exclusive right with respect to any Intellectual Property developed or delivered by or on behalf of the Company or any of its Subsidiaries in connection with such agreement.
(m) No funding, facilities or personnel of any educational institution or Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP owned or purported to be owned by the Company or any of its Subsidiaries, including any portion of a Company Product. Neither the Company nor any of its Subsidiaries is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any Third Party any license or right to such Company IP. Section 4.20(m) of the Company Disclosure Schedule sets forth a complete and accurate list of (i) any and all grants and similar funding received by the Company or any of its Subsidiaries (including their respective predecessors), including the name of the granting authority and the status and material terms thereof and (ii) any standards bodies or similar organizations of which the Company or any of its Subsidiaries (or any of their predecessors) has ever been a member, promoter or contributor.
(n) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct their respective businesses as currently conducted and, to the Knowledge of the Company, no Person has gained unauthorized access to or otherwise interfered with the operation of any IT Asset. In all matters related to the business of the Company and its Subsidiaries, the Company and each of its Subsidiaries has implemented and followed reasonable security, backup and disaster recovery processes consistent with applicable industry standard practices.
(o) The Company and the Subsidiaries are in compliance with, and have complied in all material respects with, all Applicable Laws concerning data protection and privacy (“Data and Privacy Laws”) and with their respective internal policies and practices relating to the use, collection, storage, disclosure and transfer of any data collected from or with respect to any other Person. The transactions contemplated by this Agreement will not result in the Company or any of the Subsidiaries being in breach of or unable fully to comply with any Data and Privacy Laws. The Company and the Subsidiaries are and have at all times been in material compliance with and have not breached, violated or defaulted under, or received written notice that they have breached, violated or defaulted under, any of the terms of use or service of any other Person’s website. The Company’s and each of the Subsidiaries’ access to any other Person’s website and use of data, content or other assets from any other Person’s website have at all times been in compliance with Applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Eloqua, Inc.)
Intellectual Property and Information Technology. (a) Section 3.11(aSchedule 4.20(a) lists all of the Parent Disclosure following Company Intellectual Property as of the date of this Agreement: (i) patents; (ii) registered trademarks, registered service marks or registered trade names; (iii) Internet Properties; (iv) registered Copyrights, and (v) any applications for any of the foregoing (collectively, the “Registered Company Intellectual Property”). Except as set forth on Schedule sets forth 4.20(a), the Company or a trueSubsidiary owns all right, correct title and complete list interest in and to the Registered Company Intellectual Property and all other material Company Intellectual Property solely and exclusively and free and clear of all Liens, other than Permitted Liens. Any and all renewal and maintenance fees, annuities or other fees payable to any Governmental Authority or other governing body required to maintain each item of Registered Company Intellectual Property owned as active have been paid prior to any payment deadlines. None of the Registered Company Intellectual Property has been adjudged to be invalid or unenforceable, and, to the knowledge of the Company, none of the material Registered Company Intellectual Property is invalid or unenforceable.
(b) The Company and its Subsidiaries own, license, sublicense, or otherwise possess legally enforceable and sufficient rights to, all Intellectual Property and other intangible assets necessary to conduct the business of the Company and its Subsidiaries immediately following the Closing in all material respects in substantially the same manner as such businesses are conducted as of the date hereof. The Company and its Subsidiaries may exercise, transfer, or license the Company Intellectual Property and such other intangible assets owned, or purported to be owned, by the Company or any Subsidiary, without material restriction or material payment to any Person. Neither this Agreement nor any of the Transferred transactions contemplated hereby will restrict or impair the right of the Company or its Subsidiaries (collectivelyto transfer, the “Owned Registered Intellectual Property” and together with alienate, enforce or license any other Company Intellectual Property owned or other such material intangible asset owned, or purported to be owned, by the Company or any Subsidiary as such right exists as of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducteddate hereof.
(bc) To Neither the Knowledge Company nor any of its Subsidiaries has received any written notice since January 1, 2018 alleging or claiming that the conduct of the Parentbusiness of, (i) or the operation products or services of, any of the Business by the Company and the Transferred or its Subsidiaries does not infringe uponinfringes, misappropriate, dilute misappropriates or violate otherwise violates the Intellectual Property of any third party, except as set forth on Schedule 4.20(c). As of the date of this Agreement, there are no pending Actions or, to the knowledge of the Company, Actions threatened in writing, (iiA) none alleging that the operation of the business of any of the Company or the Transferred its Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes uponinfringes, misappropriates, dilutes misappropriates or otherwise violates the Intellectual Property rights of such Person that has not been resolvedany third party, or infringed, misappropriated or otherwise violated the Intellectual Property of any third party, or (B) disputes challenging the ownership, registrability, possession, use, validity or enforceability of any material Company Intellectual Property (other than ordinary course and routine office actions and other similar proceedings that may be pending before the Owned United States Patent and Trademark Office or its foreign equivalents associated with the application for Intellectual Property, (iii) ). The conduct and operation of the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights business of the Company or its Subsidiaries (including the manufacture and sale of their products) (i) have not, since January 1, 2018, infringed, misappropriated or otherwise violated, and (ii) will not, when continued immediately following the Closing in the same manner as currently conducted , infringe, misappropriate or otherwise violate, the Intellectual Property of any third party in a manner that would result in liability that is material to the Company or its Subsidiaries.
(d) The Company and its Subsidiaries have taken commercially reasonable steps to maintain and protect the material Company Intellectual Property, including to protect and preserve the confidentiality of all Trade Secrets and other confidential information included in the material Company Intellectual Property, and there have been no unauthorized uses or disclosures of any such material Trade Secrets and other confidential information.
(e) The Company and its Subsidiaries have reasonable procedures in place to provide that all material Intellectual Property conceived or developed by employees or third parties in the course of developing Company technology or any products of the Company and its Subsidiaries, vest in or are otherwise assigned to the Company or its Subsidiaries, as applicable. Without limiting the foregoing, each employee and independent contractor of the Company or its Subsidiaries who has conceived or developed any material Company Intellectual Property, Company technology or any products of the Company and its Subsidiaries (including any proprietary marketing, packaging, advertising or other Company-branded material) for the Company or its Subsidiaries has entered into a written non-disclosure and assignment agreement with either the Company or its Subsidiaries that assigns to the Company or its Subsidiaries all such material Intellectual Property conceived or developed by such employee or independent contractor during the performance of any development services for the Company or its Subsidiaries, except as prohibited by applicable Law or where ownership of such material Intellectual Property would vest in the Company or its Subsidiaries by operation of Law.
(f) Neither this Agreement nor any of the Transferred transactions contemplated hereby will result in: (A) to the Company’s knowledge, any material Contract to which the Company or its Subsidiaries in is a party granting to any third party any right or license to any material Company Intellectual Property or material Intellectual Property owned by Buyer; (B) any Contract to which the Company or its Subsidiaries is a party (other than a material Contract) granting to any third party any right or license to any material Company Intellectual Property; (C) the Company’s or its Subsidiaries’ being obligated to pay under any Contract to which such entity is a party relating to the granting of rights under Intellectual Property any royalties or other material amounts, or offer any discounts, to any third party in excess of those payable by, or required to be offered by, any of them. This Section 3.11(b, respectively, in the absence of this Agreement or the transactions contemplated hereby; or (D) sets forth the sole and exclusive representation and warranty release of Parent regarding any Software owned by the infringement, misappropriation, dilution and other violation of Intellectual Property rightsCompany or its Subsidiaries from escrow.
(cg) The (i) Neither the Company nor its Subsidiaries has combined Open Source Software with any Company Software and distributed such combined Software in a manner such that such Software would become subject to the terms of the license under which such Open Source Software is licensed and (A) require the disclosure or distribution to any Person or the public of any portion of the source code for such Software or (B) prohibit or limit the receipt of consideration in connection with licensing, sublicensing or distributing of such Software; and (ii) the Company and its Subsidiaries are in material compliance with the Transferred terms and conditions of all relevant Open Source Licenses, including notice and attribution obligations.
(h) Neither the Company nor its Subsidiaries employ commercially reasonable efforts is a party to maintain the confidentiality of their respective trade secrets or bound by any Governmental Order that requires it to grant to any third party any license, covenant not to xxx, immunity or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in right with respect to any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(di) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) The computers, computer software, hardware, servers, workstations, routers, hubs, switches, data communications lines, firmware, networks, and all other information technology equipment assets owned or controlled by the Company or its Subsidiaries held by or under the control of the Company or its Subsidiaries (collectively, the “IT Assets”) operate and perform in a manner sufficient to permit the Transferred Company or its Subsidiaries to conduct its business as currently conducted, (ii) since January 1, 2018, the Company or its Subsidiaries have taken commercially reasonable efforts actions to maintain protect the Company confidentiality, integrity, operation and security of the IT SystemsAssets (and all information and transactions stored or contained therein or transmitted thereby) against any unauthorized use, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationsaccess, interruption, modification or corruption, and (iii) to the Knowledge knowledge of the ParentCompany, in the past eighteen (18) monthssince January 1, 2018, there has been no security breaches in the IT Assets, and no disruptions in any such IT Assets that adversely affected the operations of the business.
(j) The Company and its Subsidiaries maintain procedures regarding data security and privacy, including administrative, technical and physical safeguards, that are designed for the Company and its Subsidiaries to be in compliance with, and the Company and its Subsidiaries have at all times complied, and presently comply with, all applicable Privacy Laws and their own policies and rules regarding Personal Data except where such noncompliance would not been result in a material liability.
(k) To the knowledge of the Company, there is no complaint, proceeding, investigation or claim, pending, or threatened in writing, against the Company or its Subsidiaries by any material malfunction Governmental Authority, or by any Person in respect of the collection, use, processing, retention, transfer, or disclosure of Personal Data held by or under the control of the Company IT Systems that has not been remedied or replaced in all respectsits Subsidiaries.
(el) To Since January 1, 2018, (A) to the Knowledge knowledge of the ParentCompany, there have been no material losses or thefts of, or any material unauthorized access to, misuse of, damage to, or material data or security breaches of, any Personal Data held by or under the control of the Company or its Subsidiaries (a “Security Incident”), and (B) neither the Company nor any of its Subsidiaries, has been legally required to provide any notices to any Person in connection with a Security Incident. Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Transferred Subsidiaries consummation and performance of the transactions contemplated hereby will not breach or otherwise cause any violation of any Privacy Laws or the Company’s and its Subsidiaries’ own or have public-facing policies and statements regarding Personal Data that would result in any material constraint on the right to use the material Company IT Systems used or held of Personal Data as necessary for use in the operation of the Business. Except Company’s business as currently conducted.
(m) To the knowledge of the Company, no third party is infringing upon, misappropriating or otherwise violating any Company Intellectual Property, except as would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect, (i) the be material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the ParentCompany and its Subsidiaries, the Company’s and each of the Transferred Subsidiaries’ collectiontaken as a whole. Since January 1, processing2018, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by neither the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or nor any of the Transferred Subsidiariesits Subsidiaries has sent any written notice, charge, complaint, claim or other written assertion asserting or threatening to assert any Action against any Person involving or relating to any Company Intellectual Property.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (EDGEWELL PERSONAL CARE Co)
Intellectual Property and Information Technology. (a) Section 3.11(a5.19(a) of the Parent Disclosure Schedule sets forth a trueall patents, correct registered trademarks, registered copyrights, Internet domain name registrations and complete list of all Registered Intellectual Property pending applications for any patents, trademarks and copyrights owned by the Company Parent or any of the Transferred its Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual PropertyParent IP”). Each item The Registered Parent IP is subsisting and, excluding any pending applications contained therein, to the knowledge of Owned Intellectual Property Parent, is owned by valid and enforceable. Parent and its Subsidiaries have taken commercially reasonable steps to maintain the Company and/or each confidentiality of the Transferred all Trade Secrets material to their respective businesses.
(b) Parent or its Subsidiaries solely own, free and clear of any all Liens (other than Permitted Liens), or have the rights to use, all Parent Owned IP and Parent IT Systems material to the Company conduct of their respective businesses as currently conducted. The foregoing representation and each warranty is not intended to be a representation or warranty regarding the absence of the Transferred Subsidiaries has the right to use infringement, misappropriation or other violation of Intellectual Property, which is addressed in Section 5.19(e) below.
(i) all Owned There are no pending or, to the knowledge of Parent, threatened written claims against Parent or any of its Subsidiaries alleging any infringement, misappropriation or other violation of the Intellectual Property and (ii) of any Person by Parent or any of its Subsidiaries, and, to the Knowledge knowledge of Parent, the other Intellectual Property usedoperations of the businesses (including the products and services) of Parent and its Subsidiaries do not infringe, held for use misappropriate or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, Person; and (ii) none of the Company there are no pending or the Transferred Subsidiaries has received any threatened written claim or notice from any Person in the past three (3) years that (A) the Company claims by Parent or any of its Subsidiaries alleging any infringement, misappropriation or other violation by any Person of any material Parent Owned IP and to the Transferred Subsidiaries is engaging in any activity that infringes uponknowledge of Parent, misappropriatesno Third Party has since January 1, dilutes 2018, infringed, misappropriated or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in violated any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Parent Owned Intellectual PropertyIP.
(d) Except as would notTo the knowledge of Parent, individually since January 1, 2018, the Parent IT Systems have not suffered any material security breach or in the aggregatefailure (including any malfunction, reasonably be expected to have a Company Material Adverse Effect, (i) the Company cyber attacks or other material disruption or impairment). Parent and the Transferred each of its Subsidiaries have taken commercially reasonable efforts actions, consistent with industry standards, to maintain monitor and protect the Company confidentiality, integrity, availability, operation and security of the Parent IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationsincluding implementing and maintaining appropriate backup, business continuity and disaster recovery policies, procedures and facilities, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respectsSoftware support arrangements.
(e) To Parent and each of its Subsidiaries is in material compliance with (i) all of its binding policies relating to privacy, data protection or the Knowledge collection, use, storage, processing, transfer or disclosure of Personal Information; (ii) all Applicable Laws relating to privacy, data breach notification, or the protection, security, use, destruction or transfer of Personal Information; and (iii) all applicable payment card industry data security standards. There are no pending or, to the knowledge of Parent, threatened written claims against Parent or any of its Subsidiaries by any Person or Governmental Entity alleging a material violation of any of the foregoing and to the knowledge of Parent, the Company and the Transferred Subsidiaries own there are no facts, circumstances or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as conditions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) form the material Company IT Systems used or held basis for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiariessuch claim.
Appears in 1 contract
Samples: Merger Agreement (Mobile Mini Inc)
Intellectual Property and Information Technology. (a) Section 3.11(a5.19(a) of the Parent Disclosure Schedule sets forth a trueall patents, correct registered trademarks, registered copyrights, Internet domain name registrations and complete list of all Registered Intellectual Property pending applications for any patents, trademarks and copyrights owned by the Company Parent or any of the Transferred its Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual PropertyParent IP”). Each item The Registered Parent IP is subsisting and, excluding any pending applications contained therein, to the knowledge of Owned Intellectual Property Parent, is owned by valid and enforceable. Parent and its Subsidiaries have taken commercially reasonable steps to maintain the Company and/or each confidentiality of the Transferred all Trade Secrets material to their respective businesses.
(b) Parent or its Subsidiaries solely own, free and clear of any all Liens (other than Permitted Liens), or have the rights to use, all Parent Owned IP and Parent IT Systems material to the Company conduct of their respective businesses as currently conducted. The foregoing representation and each warranty is not intended to be a representation or warranty regarding the absence of the Transferred Subsidiaries has the right to use infringement, misappropriation or other violation of Intellectual Property, which is addressed in Section 5.19(e) below.
(i) all Owned There are no pending or, to the knowledge of Parent, threatened written claims against Parent or any of its Subsidiaries alleging any infringement, misappropriation or other violation of the Intellectual Property and (ii) of any Person by Parent or any of its Subsidiaries, and, to the Knowledge knowledge of Parent, the other Intellectual Property usedoperations of the businesses (including the products and services) of Parent and its Subsidiaries do not infringe, held for use misappropriate or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, Person; and (ii) none of the Company there are no pending or the Transferred Subsidiaries has received any threatened written claim or notice from any Person in the past three (3) years that (A) the Company claims by Parent or any of its Subsidiaries alleging any infringement, misappropriation or other violation by any Person of any material Parent Owned IP and to the Transferred Subsidiaries is engaging in any activity that infringes uponknowledge of Parent, misappropriatesno Third Party has since January 1, dilutes 2018, infringed, misappropriated or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in violated any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Parent Owned Intellectual PropertyIP.
(d) Except as would notTo the knowledge of Parent, individually since January 1, 2018, the Parent IT Systems have not suffered any material security breach or in the aggregatefailure (including any malfunction, reasonably be expected to have a Company Material Adverse Effect, (i) the Company cyber attacks or other material disruption or impairment). Parent and the Transferred each of its Subsidiaries have taken commercially reasonable efforts actions, consistent with industry standards, to maintain monitor and protect the Company confidentiality, integrity, availability, operation and security of the Parent IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationsincluding implementing and maintaining appropriate backup, business continuity and disaster recovery policies, procedures and facilities, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respectsSoftware support arrangements.
(e) To Parent and each of its Subsidiaries is in material compliance with (i) all of its binding policies relating to privacy, data protection or the Knowledge collection, use, storage, processing, transfer or disclosure of Personal Information; (ii) all Applicable Laws relating to privacy, data breach notification, or the protection, security, use, destruction or transfer of Personal Information; and (iii) all applicable payment card industry data security standards. There are no pending or, to the knowledge of Parent, threatened written claims against Parent or any of its Subsidiaries by any Person or Governmental Entity alleging a material violation of any of the foregoing and to the knowledge of Parent, the Company and the Transferred Subsidiaries own there are no facts, circumstances or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as conditions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) form the material Company IT Systems used or held basis for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiariessuch claim.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Intellectual Property and Information Technology. (a) Section 3.11(a) of the Parent Disclosure Schedule sets forth a true, correct and complete list of all Registered Intellectual Property owned by the Company or any of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens)Except as has not had, and the Company and each of the Transferred Subsidiaries has the right would not reasonably be expected to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(d) Except as would nothave, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(a) The Intellectual Property Rights owned by the Company or its Subsidiaries that are registered or required to be registered (“Company Registered Intellectual Property Rights”) are in effect, subsisting and, to the Knowledge of the Company, valid. There are no challenges, opposition or nullity proceedings commenced or, to the Knowledge of the Company, threatened with respect to any Company Registered Intellectual Property Rights. The Company Owned Intellectual Property Rights are owned exclusively by the Company or any of its Subsidiaries, free and clear of all Liens (other than Permitted Liens) and there is no Proceeding pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries concerning the ownership, validity, registrability or enforceability thereof;
(b) The Company and its Subsidiaries own, validly license or have the right to use in the manner currently used, all patents, trademarks, trade names, copyrights, Internet domain names, service marks, know-how, inventions (whether patentable or not), proprietary formulas, specifications, processes and recipes, trade secrets, manufacturing and production processes and techniques, any other confidentially or proprietary information and other intellectual property rights throughout the world, whether registered or unregistered (collectively, the “Intellectual Property Rights”) that are used in the respective businesses of the Company and its Subsidiaries as currently conducted;
(i) The conduct of the respective businesses of the Company and the Transferred its Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems(including their products and services) as conducted since December 31, 2015 does not infringe upon, misappropriate or otherwise violate any Intellectual Property Rights of any other Person; (ii) since December 31, 2015, there have been no claims for any such infringement, misappropriation or other violation pending or, to the Knowledge of the Company, threatened against the Company IT Systems are functioning in material compliance with all applicable technical specifications, or any of its Subsidiaries; and (iii) to the Knowledge of the ParentCompany, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereofof this Agreement, no other Person is infringing, misappropriating or otherwise violating any Company Owned Intellectual Property Right;
(d) The Company and its Subsidiaries have taken commercially reasonable measures (i) to protect the confidentiality of their trade secrets, (ii) to protect the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal integrity and security of Protected Information complies with all applicable privacy policies or disclosures published by the IT Assets of the Company and its Subsidiaries (and the information stored or the applicable Transferred Subsidiary contained therein) from unauthorized use, access or modification by third Persons and (iii) to protect the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure confidentiality of any Protected Information ownedthird party Intellectual Property Rights, stored, maintained or controlled including taking precautions against the unpermitted use of Intellectual Property Rights owned by or on behalf customers of the Company or any of its Subsidiaries, and there have not been any third party claims alleging such misuse. Since December 31, 2015, there have been no security breaches, loss or theft of or unauthorized access to or use of the Transferred IT Assets of the Company and its Subsidiaries. The Company and its Subsidiaries are, and have been since December 31, 2015, in compliance with their internal policies and all applicable Laws related to data privacy and protection, and to their Knowledge, there are no third party allegations to the contrary;
(e) No employees of the Company that have made contributions to the creation or development of any Company Owned Intellectual Property Rights have any rights or claims for inventor compensation payments or other similar additional remuneration arising therefrom, other than pursuant to applicable Law or any ordinary course compensation from the Company or any of its Subsidiaries;
(f) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will as a result of any Contracts to which the Company or any of its Subsidiaries is a party cause the Company or any of its Subsidiaries to (i) grant to any other Person any Intellectual Property Rights owned by, or licensed to, any of them (other than the current grants by the Company or its Subsidiaries with respect to the Company Owned Intellectual Property Rights) or (ii) be obligated to pay any royalties or other fees or consideration with respect to the Intellectual Property Rights of any other Person in excess of those payable by the Company or its Subsidiaries in the absence of this Agreement or the consummation of the transactions contemplated by this Agreement; and
(g) No Governmental Authority nor any public or private university, college or other educational or research institution has any ownership of, or any right to obtain ownership of, impose any restriction on or use in any commercial context, any Company Owned Intellectual Property Rights.
Appears in 1 contract
Samples: Merger Agreement (International Flavors & Fragrances Inc)
Intellectual Property and Information Technology. 12.1 Except as disclosed in the Listing Document, (aA) Section 3.11(a) the Company and the other members of the Parent Disclosure Schedule sets forth a trueGroup own free of Encumbrances, correct or have obtained (or can obtain on reasonable terms) licenses necessary for, or other rights to use, all trade or service marks (both registered and complete list unregistered), trade or service names, patents, patent rights, licenses, inventions, copyrights, know-how (including, without limitation, trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), domain names, and other proprietary information, rights or processes (collectively, the "Intellectual Property") described in the Listing Documentation as being owned or licensed or used by them; (B) each agreement or arrangement pursuant to which the Company or any other member of all Registered the Group has obtained necessary licenses for, or other necessary rights to use, the Intellectual Property owned is legal, valid, binding and enforceable in accordance with its terms, the Company and the other members of the Group have complied in all material respects with the terms of each such agreement which is in full force and effect, and no material default (or event which, with notice or lapse of time or fulfillment of any condition or compliance with any formality or all of the foregoing, would constitute such a default) by the Company or any other member of the Transferred Subsidiaries Group has occurred and is continuing under any such agreement; (collectively, C) there is no claim to the “Owned Registered Intellectual Property” and together with contrary or any challenge by any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right person to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any other member of the Transferred Subsidiaries Group with respect to the Intellectual Property, except those that would not have a Material Adverse Effect; (D) neither the Company nor any other member of the Group has infringed or is infringing the intellectual property of a third party, and neither the Company nor any other member of the Group has received notice of a claim by a third party to the contrary that could result in a Material Adverse Effect; and (E) there is no material pending suit, proceeding or claim by others that the Company or any Intellectual Property owned other member of the Group infringes or otherwise violates proprietary rights of others.
12.2 (A) All computer systems, communications systems, software and hardware which are currently owned, licensed or used by the Company or any other member of them. This Section 3.11(bthe Group (collectively, the "Information Technology") sets forth comprise all of the sole information technology systems and related rights necessary to conduct, or material to, the respective businesses of the Company and the other members of the Group as currently conducted; (B) the Company and the other members of the Group either legally and beneficially own, or have obtained valid licenses for, or other rights to use, all of the Information Technology, and such licenses or rights are in full force and effect and have not been revoked or terminated; (C) all the records and systems (including but not limited to the Information Technology) and all data and information of the Group are maintained and operated by the Group and are not wholly or partially dependent on any facilities not under the exclusive representation ownership or control of the Company and warranty the other members of Parent regarding the infringementGroup, misappropriationexcept where such lack of exclusive ownership or control would not, dilution individually or in the aggregate, have a Material Adverse Effect; and other violation (F) each member of Intellectual Property rightsthe Group has in place adequate back-up policies and disaster recovery arrangements which enable its Information Technology and the data and information stored thereon to be replaced and substituted without disruption to the business of the relevant member of the Group.
(cA) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation members of the transactions contemplated under this Agreement will not impair, Group have complied in all material respects with all applicable data protection Laws; (B) neither the Company nor any material respect, the right, title or interest other member of the Company or Group, to the Transferred Subsidiaries inbest knowledge of the Company, or their respective rights to usehas received any notice (including, without limitation, any enforcement notice, de-registration notice or transfer prohibition notice), letter, complaint or allegation from the relevant data protection Authority alleging any breach or non-compliance by it of the Owned Intellectual Property.
(d) Except as would notapplicable data protection Laws that could, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiaries.
Appears in 1 contract
Samples: Sponsors Agreement
Intellectual Property and Information Technology. (a) Section 3.11(a3.14(a) of the Parent Disclosure Schedule sets forth a true, correct accurate and complete list of all Registered material Intellectual Property registrations and applications that are owned or held by the Group Companies. A Group Company is the owner of the entire right, title and interest in and to such Intellectual Property, subject to the rights and interests granted to third parties under the relevant licenses for such Intellectual Property. All such Intellectual Property registrations and applications are unexpired and subsisting and have not been abandoned and are valid and enforceable. None of the Group Companies has entered into any agreement or arrangement that restricts the use, license or assignment of such Intellectual Property. A Group Company owns, free and clear of all Encumbrances (except for any non-exclusive license thereof), each such Intellectual Property (no matter whether any third party, including the Seller or the Seller Parent, has contributed to the development of such Intellectual Property), and has licenses or other rights to use all other Intellectual Property that is used in the conduct of its business as currently conducted. No Actions are pending or, to the Knowledge of the Seller, imminent regarding any material issuances or registered or applied for Intellectual Property owned by the Company or any of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens)Group Company, and the Company all material actions and each of the Transferred Subsidiaries has the right fees required to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parentmaintain such issuances, the other Intellectual Property usedregistrations or applications for registrations, held for use or otherwise necessary in connection with the Business, as presently conductedhave been duly taken and/or paid.
(b) All licenses of Intellectual Property granted to or by any Group Company which are material to the business of such Group Company (the “IP Licenses”) are binding and in full force. None of the Group Companies are in default under any IP License to which such Group Company is a party and to the Knowledge of the Seller, none of the counterparties to such IP Licenses is in default under such IP Licenses. To the Knowledge of the ParentSeller, there are no grounds on which the IP Licenses could be unilaterally terminated. No disputes have arisen in connection with the IP Licenses.
(ic) the operation None of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries Group Companies has received any written claim communication (including “cease and desist” letters or notice from any Person invitations to license a patent) in the past three (3) years asserting that (A) the use of any Intellectual Property by such Group Company or another Group Company infringes or misappropriates any third party’s Intellectual Property rights. To the Knowledge of the Transferred Subsidiaries Seller, the Group Companies’ conduct of their businesses as currently conducted, including the manufacturing and sale of products, does not and has not in the past three years infringed, misappropriated, or violated any Intellectual Property of another Person that could give rise to a claim with a value in excess of RMB 1,000,000 against any Group Company. To the Knowledge of the Seller, no Person is engaging in any activity that infringes uponinfringes, misappropriatesmisappropriates or violates or has in the past three years infringed, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolvedmisappropriated, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in violated any Intellectual Property owned by any of themGroup Company. This Section 3.11(b) sets forth In the sole and exclusive representation and warranty of Parent regarding the infringementpast three years, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation none of the transactions contemplated under this Agreement will not impairGroup Companies has sent any notice to or asserted or threatened in writing any action or claim against any Person involving or relating to any Intellectual Property, in other than any material respectsuch actions, the right, title claims or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, matters that have been permanently resolved without any future Liability on any of the Owned Group Companies. None of the Group Companies are currently required to indemnify for material damages suffered by any Person due to Intellectual PropertyProperty claims raised against such Person.
(d) Except as would notindicated in Section 3.14(a) of the Disclosure Schedule, individually no Person other than the relevant Group Company or in an Affiliate of such Group Company (including the aggregateSeller Parent), reasonably be expected to have a Company Material Adverse Effectincluding any educational or research institution, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT SystemsGovernmental Authority or other government supported institution, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specificationsis contributing any funding, and (iii) equipment, facilities or personnel to the Knowledge invention, creation or development of the Parent, in the past eighteen (18) months, there has not been any material malfunction proprietary Intellectual Property or product of the Company IT Systems that has not been remedied or replaced in all respectssuch Group Company.
(e) To The Group Companies have taken all commercially reasonable actions to protect the Knowledge confidentiality of their trade secrets and confidential information in all material respects.
(f) None of the Parentinformation and communication technologies, including hardware, proprietary and third party software, services and networks, currently owned, leased or used by any Group Company is material to the business and operation of such Group Company and cannot be replaced by another technology with the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s same functionality upon reasonable terms and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiariesconditions.
Appears in 1 contract
Samples: Equity Interest Transfer Agreement (Adama Agricultural Solutions Ltd.)
Intellectual Property and Information Technology. (ai) Section 3.11(a4.1(r)(i) of the Parent Company Disclosure Schedule sets forth a truelists all patents and patent applications, correct trademark registrations and complete list of all Registered pending applications for trademark registrations, copyright registrations and pending applications for copyright registrations, Internet domain name registrations and any other registered Intellectual Property and pending applications for registered Intellectual Property, in each case owned by the Company or any of the Transferred and its Subsidiaries (collectively, the “Owned Company Registered Intellectual Property” ).
(ii) The Company and together with any other Intellectual Property owned by the Company or any of the Transferred its Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies)own, the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any all Liens (other than except Permitted Liens), and the Company Intellectual Property, and each of the Transferred Subsidiaries has own or otherwise have the right to use all Intellectual Property currently used in the operation of their businesses, except where the failure to own or have such rights, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. The conduct of the Company’s and its Subsidiaries’ businesses, as currently conducted and as conducted since July 1, 2015, does not infringe, misappropriate, dilute or otherwise violate any Intellectual Property rights of any third party, except for infringements, misappropriations, dilutions or other violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. Since July 1, 2015, no claims have been issued, are pending or, to the knowledge of the Company, are threatened in writing which (i) all Owned Intellectual Property and (ii) to allege that the Knowledge Company’s or any of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not its Subsidiaries’ operations infringe upon, misappropriate, dilute or otherwise violate the any Intellectual Property rights of any third party, ; or (ii) none otherwise will or are likely to adversely affect the Company’s or any of its Subsidiaries’ rights in or to the Company Intellectual Property, except for claims that, individually or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries. To the Transferred Subsidiaries knowledge of the Company, since July 1, 2015 no third party is engaging in any activity that infringes or has infringed upon, misappropriatesmisappropriated, dilutes diluted, or otherwise violates the violated any Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringementits Subsidiaries, misappropriationexcept for infringements, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets misappropriations, dilutions or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(d) Except as would notviolations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse EffectEffect on the Company.
(iii) To the knowledge of the Company, (i) all trade secrets, proprietary information and other confidential information of the Company and the Transferred Subsidiaries have taken commercially reasonable efforts its Subsidiaries, and of any third party that has been provided to maintain the Company IT Systemsor any of its Subsidiaries, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, has been kept confidential and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use disclosed except in the operation ordinary course of business and subject to written confidentiality obligations from the Business. Except as would notthird party, except for disclosures that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, Effect on the Company.
(iiv) All of the material Company IT Systems used are sufficient for the business of the Company and its Subsidiaries as currently conducted, except for circumstances that, individually or held for use in the operation of the Business are sufficient aggregate, would not reasonably be expected to conduct the Business as it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or have a Material Adverse Effect on behalf of the Company or any of the Transferred its Subsidiaries.
(v) To the knowledge of the Company, since July 1, 2015, (A) the IT Systems have not been subject to any material systems failure, data loss or theft, unauthorized access, malware attack or other security breach or failure (each, a Cyber Security Incident), and (B) no third party engaged by the Company or any of its Subsidiaries has incurred a Cyber Security Incident which compromised, or potentially compromised, any data held on behalf of or otherwise relating to the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fairmount Santrol Holdings Inc.)
Intellectual Property and Information Technology. (a) Section 3.11(a4.20(a) of the Parent Company Disclosure Schedule sets forth a true, correct lists substantially all of the Company Registered IP.
(b) The Company and complete list each of its Subsidiaries has complied with all material requirements of all United States and foreign patent offices and all other applicable Governmental Authorities to maintain such of the Patents included in the Company Registered Intellectual Property IP in full force and effect as Company reasonably believes are material to its business. Each material item of Company Registered IP is owned solely by the Company or any of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens).
(c) Each item of Company IP is either: (i) owned solely by the Company free and clear of any Liens, or (ii) rightfully used and authorized for use by the Company and each of the Transferred its Subsidiaries has the right and their respective permitted successors pursuant to use (i) all Owned Intellectual Property a valid and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) enforceable written license. To the Knowledge of the ParentCompany, (i) the operation of the Business by the Company and each of its Subsidiaries has and has had all material rights in the Transferred Company IP necessary to carry out the Company’s and its Subsidiaries’ former activities and current activities with respect to the Company Products.
(d) The Company and each of its Subsidiaries does is in compliance in all material respects with and is not infringe uponin breach, misappropriateviolation or default under, dilute and has not received written notice that it is in breach, violation or violate default under, any of the terms or conditions of any material Contract related to Intellectual Property where such breach, default or violation has or could reasonably be expected to be materially adverse to the Company or its Subsidiaries. Immediately following the Closing Date, the Surviving Corporation will be permitted to exercise all of any third partythe Company’s and its Subsidiaries’ rights under all such contracts, (ii) none licenses and agreements that are material to the business of the Company and its Subsidiaries to the same extent the Company and its Subsidiaries would have been able to had the transactions contemplated by this Agreement not occurred and without the payment of any additional material amounts or the Transferred Subsidiaries has received any written claim consideration other than fees, royalties or notice from any Person in the past three (3) years that (A) payments which the Company or any of the Transferred its Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or would otherwise violates the Intellectual Property rights of such Person that has not have been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts required to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of pay had the transactions contemplated under by this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respectsoccurred.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation of the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation of the Business are sufficient to conduct the Business as it is conducted as of the date hereof, the use of the Company IP by the Company and any of its Subsidiaries as previously used and as currently used does not infringe any other Person’s rights in Intellectual Property or give rise to any claim of unfair competition under any Applicable Law where such infringement or violation could reasonably be expect to result in material liability to the Company and its Subsidiaries. No written claims (i) challenging the validity, enforceability, effectiveness or ownership by the Company or any of its Subsidiaries of any of the material Company IP or (ii) to the Knowledge of effect that the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosurereproduction, storagemodification, disposal and security manufacture, distribution, licensing, sublicensing, sale, or any other exercise of Protected Information complies with all applicable privacy policies or disclosures published rights in any Company IP by the Company or any of its Subsidiaries infringes any Intellectual Property or other proprietary or personal right of any Person have been asserted against the applicable Transferred Subsidiary and Company or any of its Subsidiaries during the five (iii5) to year period immediately preceding the date hereof, nor has Company received notice that any such claim currently is contemplated. To the Knowledge of the Parent, in the past three (3) yearsCompany, there has not been any data security breach is no unauthorized use, infringement, or unauthorized access, use or disclosure misappropriation of any Protected Information ownedmaterial Company IP by any third party or by any current, storedformer, maintained or controlled retired employee, officer, or director of the Company or any of its Subsidiaries.
(f) The Company and each of its Subsidiaries has obtained from all parties (including each current, former, or retired employee, officer, and director of the Company and each of its Subsidiaries) who have created any portion of, or otherwise who would have any rights in or to, the Company IP owned by the Company or any of its Subsidiaries valid and enforceable written assignments of any such work, invention, improvement or other rights to the Company and its Subsidiaries. No employee, former employee, consultant or former consultant of the Company or any of its Subsidiaries has excluded any material Intellectual Property from any written assignment executed by any such Person in connection with work performed for or on behalf of the Company or any of its Subsidiaries except as required by law.
(g) The transactions contemplated by this Agreement will not impair or otherwise adversely affect any rights of the Transferred Company or any of its Subsidiaries in any material Company IP.
(h) Neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company IP, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the delivery, license, or disclosure of any source code to any Person who is not, as of the date of this agreement, an employee of the Company or its Subsidiaries.
(i) The Company and each of its Subsidiaries have taken commercially reasonable measures to protect its ownership of, and rights in, all Company IP owned by the Company or any of its Subsidiaries in accordance with industry practices. Without limiting the foregoing, neither the Company nor any of its Subsidiaries has made any of its material trade secrets or other material confidential or proprietary information that it intended to maintain as confidential (including source code with respect to Company IP) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information.
(j) To the Knowledge of the Company, the Company IP does not contain any computer code designed to disrupt, disable or harm in any manner the operation of any software or hardware. To the Knowledge of the Company, none of the Company IP contains any unauthorized feature (including any worm, bomb, backdoor, clock, timer or other disabling device, code, design or routine) that causes the software or any portion thereof to be erased, inoperable or otherwise incapable of being used, either automatically, with the passage of time or upon command by any Person.
(k) Section 4.20(k) of the Company Disclosure Schedule sets forth a list of all Contracts pursuant to which Company and/or its Subsidiaries granted to a third party or has been granted by a third party a license to Intellectual Property, other than Contracts entered into in the ordinary course of business or which are not material to the business of Company and its Subsidiaries (the “Material IP Agreements”).
(l) Section 4.20(l) of the Company Disclosure Schedule contains a true and complete list of all third-party Software sold with, incorporated into or distributed in connection with the Company Products listed thereon.
(m) Section 4.20(m) of the Company Disclosure Schedule contains a true and complete list of all code sold with, incorporated into or distributed in connection with the Company Products listed thereon that is, in whole or in part, subject to the provisions of any license to Publicly Available Software.
(n) Neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person.
(o) No funding, facilities or personnel of any educational institution or Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP owned or purported to be owned by the Company or any of its Subsidiaries, including any portion of any Company Product. The Company and each of its Subsidiaries is not and has never been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or any of its Subsidiaries to grant or offer to any third party any license or right to such Company IP.
(p) There is no governmental prohibition or restriction on the use of any Company IP owned or purported to be owned by the Company or any of its Subsidiaries in any jurisdiction in which the Company or any of its Subsidiaries currently conducts or has conducted business or on the export or import of any of the Company IP from or to any such jurisdiction.
(q) Except in the ordinary course of business, neither the Company nor any of its Subsidiaries has agreed to indemnify any Person for or against any interference, infringement, misappropriation, or other conflict with respect to any of the Company IP or any Intellectual Property that was formerly Company IP where such indemnity could reasonably be expected to result in material liability to the Company or its Subsidiaries.
(r) The level of staffing and resources currently maintained by the Company and its Subsidiaries for the provision of maintenance, support or similar services is sufficient to comply with all reasonably foreseeable obligations arising under all maintenance and support agreements.
(s) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, no person has gained unauthorized access to any IT Asset during the three (3) years immediately preceding the date hereof in a manner that has resulted or could reasonably be expected to result in material liability to the Company or its Subsidiaries. Each of the Company and its Subsidiaries have implemented reasonable backup and disaster recovery technology processes consistent with industry best practices.
Appears in 1 contract
Intellectual Property and Information Technology. (a) Section 3.11(a4.13(a) of the Parent Seller Disclosure Schedule Letter sets forth a true, correct and complete list of all Registered Intellectual Property registrations and applications for Patents, Trademarks and Copyrights owned by the Company or any of the Transferred Holding Companies or Company Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Listed Intellectual Property”)) and the applicable registrant, applicant or owner is set forth in the column opposite each such Listed Intellectual Property. Each item of Owned All Listed Intellectual Property is solely and exclusively owned by the a Holding Company and/or each of the Transferred Subsidiaries free or Company Subsidiary and clear of is valid and enforceable and there are no inventorship challenges, or opposition, reexamination, nullity, interference or other proceedings or Actions commenced or threatened in writing, with respect to any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Listed Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conductedProperty.
(b) To the Knowledge of the Parent, The Holding Companies and Company Subsidiaries either (i) the operation own free and clear of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute all Liens other than Permitted Liens or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Intellectual Property owned by any of them. This Section 3.11(b) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned Intellectual Property.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge of the Parent, in the past eighteen (18) months, there has not been any material malfunction of the Company IT Systems that has not been remedied or replaced in all respects.
(e) To the Knowledge of the Parent, the Company and the Transferred Subsidiaries own or have the right to use the pursuant to a valid license, sublicense or other permission (including under any Ancillary Agreement) all material Company IT Systems Intellectual Property used or held for use in the operation of the Business. Except , as would notpresently conducted and as contemplated to be conducted.
(i) The operation of the Business does not infringe, individually misappropriate or otherwise violate, and since the Lookback Date has not infringed, misappropriated or otherwise violated, any Intellectual Property of any Person and (ii) no rights in any Company Intellectual Property or Intellectual Property exclusively licensed to any of the aggregateSeller and its Affiliates (in respect of the Business), reasonably be expected the Business, the Holding Companies or the Company Subsidiaries are being infringed, misappropriated or otherwise violated, or, since the Lookback Date, have been infringed, misappropriated or otherwise violated by any Person.
(d) (x) There are no material Actions pending or threatened in writing, (y) since the Lookback Date, there have been no material Actions pending or threatened in writing and (z) the Seller and its Affiliates (in respect of the Business), the Business, the Holding Companies and the Company Subsidiaries have not otherwise received from or sent to have a Company Material Adverse Effectany Person any written notice, charge, complaint, claim or other written assertion, in each case of the foregoing, (i) alleging that the operation of the Business infringes, misappropriates or is otherwise in violation of any Intellectual Property of any Person, (ii) alleging that any Person has infringed, misappropriated or otherwise violated any Intellectual Property of any of the Seller and its Affiliates (in respect of the Business), the Business, the Holding Companies or the Company Subsidiaries or (iii) challenging the validity, enforceability or ownership of any Listed Intellectual Property.
(e) Each employee, contractor and consultant of the Holding Companies, Company Subsidiaries or the Seller and its Affiliates (in respect of the Business), has assigned to one of the Holding Companies or Company Subsidiaries (either pursuant to a valid and binding agreement or by operation of Law), all Intellectual Property that such employee or consultant, solely or jointly, conceived, reduced to practice, developed, contributed to, modified, improved or made during the period of their employment, contracting or consulting relationship for or on behalf of the Holding Companies or Company Subsidiaries and has waived all moral rights (and similar rights) in respect of such Intellectual Property to the extent possible under applicable Law.
(f) The Seller and its Affiliates (in respect of the Business), the Business, the Holding Companies and the Company Subsidiaries have taken commercially reasonable actions to maintain and protect the secrecy and confidentiality of the material Trade Secrets included in the Company IT Systems Intellectual Property, and, to the Knowledge of the Seller, no such Trade Secret has been disclosed to any Person other than pursuant to a non-disclosure agreement restricting the disclosure of such Trade Secret.
(g) Except for the Intellectual Property to be licensed to the Holding Companies and Company Subsidiaries pursuant to this Agreement or the Ancillary Agreements, the Seller and its current and (with respect to any Affiliates sold by Seller or any of its Affiliates in connection with the transactions contemplated by the Mining SAPA) former Affiliates (other than the Holding Companies and the Company Subsidiaries) do not own any Intellectual Property used or held for use in the Business. The operation of the Business are sufficient to conduct the Business as it is conducted Business, as of the date hereof, (ii) hereof and immediately prior to the Knowledge Closing, is compliant with, in all material respects, the terms of the ParentXxxx Xxxxxxx License, the Company’s and each as if such license were in effect as of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal date hereof and security of Protected Information complies with all applicable privacy policies or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) immediately prior to the Knowledge Closing.
(h) Except as set forth on Section 4.13(h) of the ParentSeller Disclosure Letter, in no Software or other material that is distributed as “open source software” or under a similar licensing or distribution model, including the past three Apache 2.0. GNU General Public License (3GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL) yearsor GNU Affero General Public License (AGPL) (“Open Source Software”) has been incorporated into, there has not been linked or distributed with any data security breach or unauthorized access, use or disclosure source code of any Protected Information owned, stored, maintained material proprietary Software owned or controlled purported to be owned by any of the Seller and its Affiliates (held for or on behalf of the Company or any of the Transferred SubsidiariesBusiness), the Holding Companies or the Company Subsidiaries (the “Company Source Code”) in a manner that would: (i) either currently or upon its distribution, require any such Company Source Code (in whole or in part) to be licensed, sold or disclosed, or (ii) grant the right to make derivative works of any of such Company Source Code (in whole or in part). All use and distribution of Software and Open Source Software by the Seller and its Affiliates (in respect of the Business), the Holding Companies and the Company Subsidiaries is in compliance with all Open Source Software licenses in all material respects.
Appears in 1 contract
Intellectual Property and Information Technology. (a) Section 3.11(a) 17.1 Any Intellectual Property and rights in Business Information that subsist in, or otherwise protect, any Proprietary Software are owned by a member of the Parent Disclosure Schedule sets forth Xxxxx Group, and the software solutions and systems licensed out by any member of the Xxxxx Group under the brand names expressly listed in the definition of Proprietary Software comprise all material software solutions and systems licensed out by any member of the Xxxxx Group to its respective end-user customers.
17.2 The Proprietary Tools that are capable of possession are in the possession of a truemember of the Xxxxx Group, correct and complete list the Proprietary Tools that are in the possession of a member of the Xxxxx Group comprise all Registered Intellectual Property owned tools, source code, data and documents necessary for reasonably skilled personnel in the field of information technology to use, maintain and/or operate the Proprietary Software in materially the same manner as the Proprietary Software was used, maintained or operated (as applicable) by the Company or any Xxxxx Group immediately prior to the date of the Transferred Subsidiaries (collectively, the “Owned Registered Intellectual Property” and together with any other Intellectual Property owned by the Company or any of the Transferred Subsidiaries (which for the avoidance of doubt includes the Risk Quality Index and Performance Premium methodologies), the “Owned Intellectual Property”). Each item of this Agreement.
17.3 All Owned Intellectual Property (including the Registered Owned IP) and Business IT that is owned by the Company and/or each Xxxxx Group:
(A) is exclusively legally and beneficially owned by a member of the Transferred Subsidiaries free Xxxxx Group; and
(B) is not subject to any Encumbrance or any licence in favour of another, except those Encumbrances and clear licences set out in the Data Room and any non-exclusive licences entered into in the ordinary course of business.
17.4 Details of all Registered Owned IP are set out in the Data Room and, in respect of all Registered Owned IP:
(A) all renewal fees due as at the date of this Agreement have been paid;
(B) at the date of this Agreement, there are no existing deadlines for the payment of any Liens registration or renewal fees, which are required for their maintenance due within 90 days from the date of this Agreement;
(C) all assignments from inventors that are required to register any Registered Owned IP in the name of a member of the Xxxxx Group have been made or filed at the relevant Intellectual Property registry; and
(D) no member of the Xxxxx Group has received written notice that a registration or application for registration is, at the date of this Agreement, the subject of any action or proceedings (actual or threatened) for opposition, amendment, revocation, cancellation or invalidity.
17.5 No member of the Seller’s Group owns any:
(A) rights in inventions or patents or patent applications that are used in the business of any member of the Xxxxx Group;
(B) Intellectual Property or rights in Business Information that subsists in, or otherwise protects, any software (excluding any Proprietary Software and Proprietary Tools) that is used in and material to the business of any member of the Xxxxx Group, other than Permitted Liens)any Intellectual Property or rights in Business Information licensed to the Xxxxx Group by the Seller’s Group under clause 11.3 (Intellectual Property) and any software relating to any services provided to, and or licensed to, the Company and each Purchaser as Transitional Services; or
(C) Intellectual Property or rights in Business Information that subsists in, or otherwise protects, any Proprietary Software or Proprietary Tools or any part thereof.
17.6 Details of all licences (granted to or by any member of the Transferred Subsidiaries Xxxxx Group) and agreements relating to Intellectual Property and Business IT entered into by any member of the Xxxxx Group, in each case, that are material to the business of any member of the Xxxxx Group, are set out in the Data Room.
17.7 No member of the Xxxxx Group nor, so far as the Seller is aware, any other party, is in material breach of any of the licences or agreements disclosed pursuant to paragraph 17.6 and no notice has been given on either side to terminate any such licence or agreement.
17.8 So far as the right Seller is aware, no third party is infringing any Owned Intellectual Property.
17.9 Each current or former contractor or consultant engaged by any member of the Xxxxx Group, whose role it was or is to use develop Intellectual Property in the course of his or her or its engagement or, who, during the course of his or her or its engagement, is likely to have developed or to develop Intellectual Property material to any member of the Xxxxx Group, has entered into an agreement under which he, she or it is obliged to assign any such Intellectual Property that he, she or it developed or develops during the course of his or her or its engagement for a member of the Xxxxx Group to a member to the Xxxxx Group.
17.10 In the two years prior to the date of this Agreement: (i) all Owned no member of the Seller’s Group or the Xxxxx Group has received a written notice alleging that any activities of any member of the Xxxxx Group infringe any Intellectual Property Property, or misuse any rights in Business Information, of a third party; and (ii) to so far as the Knowledge of ParentSeller is aware, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge no activities of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate Xxxxx Group have infringed the Intellectual Property of any third party. No member of the Xxxxx Group is engaged in any outstanding dispute under which it is alleged that it infringes any Intellectual Property, or misuses any rights in Business Information, of a third party.
17.11 No member of the Xxxxx Group has, in its creation or development of the source code of the Proprietary Software, infringed any copyright owned by any third party or misappropriated any trade secrets of any third party.
17.12 No activities of the Xxxxx Group infringe the Intellectual Property of any third party.
17.13 So far as the Seller is aware, and save in the ordinary course of business or to its employees, no member of the Xxxxx Group has disclosed any confidential Business Information, or the source code of any Proprietary Software, to any third party other than under an obligation of confidentiality.
17.14 There has been no material disruption to the commercial activities of the Xxxxx Group (taken as a whole) in the twelve months prior to the date of this Agreement which has been caused only or predominantly by any failure or breakdown of any Business IT used by the Xxxxx Group and, so far as the Seller is aware, there has been no information security breach, unauthorised disclosure of data or unauthorised access of any Business IT owned by the Xxxxx Group during that same period.
17.15 Penetration testing has been carried out on the Business IT owned by the Xxxxx Group and, to the extent hosted in the operating environment of the Xxxxx Group and permitted by the relevant third party vendor, the Business IT used but not owned by the Xxxxx Group, in each case in the twelve months prior to the date of this Agreement, and any material weaknesses detected by such testing have, as at the date of this Agreement, been remedied or are in the process of being remedied.
17.16 Each member of the Xxxxx Group complies with current Payment Card Industry Data Security Standards when processing credit card information.
17.17 The procedures used by the Xxxxx Group to back up data, and the disaster recovery plans used by the Xxxxx Group, in each case of a standard which would reasonably be expected from a reputable organisation carrying out the business of the Xxxxx Group and seeking to ensure business continuity, and copies of these documents as at the date of this Agreement are set out in the Data Room.
17.18 Details of all domain names that are used to support active websites of the business of any member of the Xxxxx Group (excluding any domain names that include the word “Rambus” or any confusingly similar name or xxxx), and details of all domain names registered in the name of any member of the Xxxxx Group, are set out in the Data Room and all renewal fees due as at the date of this Agreement in respect of such registrations have been paid.
17.19 Compliance with the terms of any licence applying to “open source software” or “free software” incorporated into or contained in or distributed with any Proprietary Software, does not require any member of the Xxxxx Group to: (i) disclose or distribute any source code of any Proprietary Software, or other software owned by any member of the Xxxxx Group that is material to the business of any member of the Xxxxx Group; (ii) none make available any Proprietary Software, or other software owned by any member of the Company or Xxxxx Group that is material to the Transferred Subsidiaries has received business of any written claim or notice from any Person in the past three (3) years that (A) the Company or any member of the Transferred Subsidiaries is engaging Xxxxx Group, under a licence authorising the creation of derivative works; or (iii) restrict the consideration charged by any member of the Xxxxx Group in respect of any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolvedProprietary Software, or (B) disputes the ownership, validity or enforceability other software owned by any member of the Xxxxx Group that is material to the business of any member of the Xxxxx Group.
17.20 The Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in together with any Intellectual Property owned by or rights in Business Information:
(A) of a third party that is licensed to a member of the Xxxxx Group;
(B) relating to any of them. This Section 3.11(bservices provided to, or licensed to, the Purchaser as Transitional Services;
(C) sets forth assigned to Ecebs under the sole and exclusive representation and warranty of Parent regarding Trade Xxxx Assignment Agreement;
(D) licensed to the infringementPurchaser’s Group under clause 11.3;
(E) protecting the Seller Marks (excluded from the licence to the Purchaser’s Group under clause 11.3); and
(F) licensed to the Seller under the White Box Contract, misappropriation, dilution and other violation of comprise all the Intellectual Property rights.
and Business Information: (ci) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will not impair, in any material respect, the right, title or interest of the Company or the Transferred Subsidiaries used in, or their respective rights necessary for the conduct of, the business of each member of the Xxxxx Group as currently conducted as at the date of this Agreement; and (ii) necessary to use, any maintain and operate the Proprietary Software and the Proprietary Tools as currently used, maintained and operated as at the date of this Agreement. Notwithstanding the generality of the Owned foregoing, this Seller Warranty 17.20 shall not be construed as, or deemed to be, a warranty that no member of the Xxxxx Group is infringing or has infringed any Intellectual PropertyProperty or is making or has made unauthorised use of any Business Information of any third party.
(d) Except as would not, individually or 17.21 The only third party software licensed-in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries have taken commercially reasonable efforts to maintain the Company IT Systems, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge member of the Parent, in the past eighteen (18) months, there has not been any material malfunction Seller’s Group under which licence a member of the Company IT Systems Xxxxx Group also currently uses that has not been remedied or replaced software is that listed in all respects.
(e) To the Knowledge document reference 15.2.88 of the Parent, Data Room. Notwithstanding the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems used or held for use in the operation generality of the Business. Except as would notforegoing, individually this Seller Warranty 17.21 shall not be construed as, or in the aggregatedeemed to be, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held for use in the operation warranty that no member of the Business are sufficient to conduct the Business as it Xxxxx Group is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies infringing or disclosures published by the Company has infringed any Intellectual Property or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there is making or has not been any data security breach or unauthorized access, made unauthorised use or disclosure of any Protected Business Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiariesthird party.
Appears in 1 contract
Intellectual Property and Information Technology. (ai) Section 3.11(a3.3(v)(i) of the Parent Buyer Disclosure Schedule Letter sets forth a true, correct and complete list of all Registered (A) registered Intellectual Property owned by the Company or licensed to any of the Transferred Subsidiaries Buyer Entities and (collectively, the “Owned Registered Intellectual Property” and together with any B) all other Intellectual Property owned by the Company or licensed to any of the Transferred Subsidiaries Buyer Entities that is material to the conduct of the Buyer Business.
(which for ii) The Buyer Entities own, free and clear of all Encumbrances other than Permitted Encumbrances, or have sufficient rights to use all of the avoidance Intellectual Property used in the operation of doubt includes the Risk Quality Index and Performance Premium methodologies), Buyer Business (the “Owned Buyer Intellectual Property”). Each item of Owned Intellectual Property is owned by the Company and/or each All of the Transferred Subsidiaries free and clear of any Liens (other than Permitted Liens), and the Company and each of the Transferred Subsidiaries has the right to use (i) all Owned Intellectual Property and (ii) to the Knowledge of Parent, the other Intellectual Property used, held for use or otherwise necessary in connection with the Business, as presently conducted.
(b) To the Knowledge of the Parent, (i) the operation of the Business by the Company and the Transferred Subsidiaries does not infringe upon, misappropriate, dilute or violate the Intellectual Property of any third party, (ii) none of the Company or the Transferred Subsidiaries has received any written claim or notice from any Person in the past three (3) years that (A) the Company or any of the Transferred Subsidiaries is engaging in any activity that infringes upon, misappropriates, dilutes or otherwise violates the Intellectual Property rights of such Person that has not been resolved, or (B) disputes the ownership, validity or enforceability of the Owned Intellectual Property, (iii) the Owned Registered Intellectual Property is subsisting, valid and enforceable, and (iv) no Person is infringing upon, diluting, violating or misappropriating the rights of the Company or any of the Transferred Subsidiaries in any Buyer Intellectual Property owned by any of them. This the Buyer Entities which has been registered or applied for has been properly obtained, maintained and renewed by such Buyer Entity in accordance with all applicable Laws and, except as set out in Section 3.11(b3.3(v)(ii) sets forth the sole and exclusive representation and warranty of Parent regarding the infringement, misappropriation, dilution and other violation of Intellectual Property rights.
(c) The Company and the Transferred Subsidiaries employ commercially reasonable efforts to maintain the confidentiality of their respective trade secrets or other confidential information. The consummation of the transactions contemplated under this Agreement will Buyer Disclosure Letter, has not impairbeen used or enforced, or failed to be used or enforced, in a manner that would result in the abandonment, cancellation or unenforceability of any material respect, the right, title or interest of the Company or the Transferred Subsidiaries in, or their respective rights to use, any of the Owned in such Buyer Intellectual Property.
(diii) None of Buyer Entities has received any written notice from any other Person challenging in any material respect the right of any of the Buyer Entities to use any of the Buyer Intellectual Property, except as set out in Section 3.3(v)(iii) of the Buyer Disclosure Letter. None of the Buyer Entities has made any claim in writing of a violation or infringement by others of its rights to or in connection with any Buyer Intellectual Property. To the knowledge of Buyer, neither the conduct of the Buyer Business or use or exploitation of the Buyer Intellectual Property by Buyer Entities infringes any other Person’s intellectual property rights. To the knowledge of Buyer, no Person has infringed or is infringing the right of any of the Buyer Entities in or to any of the Buyer Intellectual Property. There are no Claims in progress or, to the knowledge of Buyer, threatened against any of the Buyer Entities relating to Buyer Intellectual Property.
(iv) Except as would notset out in Section 3.3(v)(iv) of the Buyer Disclosure Letter, individually none of the Buyer Entities has granted any licences to or in the aggregateother rights in, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Transferred Subsidiaries Buyer Entities have taken commercially reasonable efforts no obligation to maintain the Company IT Systemsgrant licences to or other rights in, (ii) the Company IT Systems are functioning in material compliance with all applicable technical specifications, and (iii) to the Knowledge any of the Parent, in the past eighteen (18) months, there has not been Buyer Intellectual Property to any material malfunction of the Company IT Systems that has not been remedied or replaced in all respectsother Person.
(ev) Each of the Buyer Parties have taken reasonably appropriate action by instruction, agreement or otherwise with Buyer Employees or other persons permitted access to system application programs and data files used in such systems to protect against unauthorized access, use, copying, modification, acceptance and destruction of such programs and files. Each of the Buyer Parties maintains back-up systems and a disaster recovery plan consistent with industry practices.
(vi) To the Knowledge knowledge of the ParentBuyer, the Company and the Transferred Subsidiaries own or have the right to use the material Company IT Systems Information Technology used or held for use in the operation of Buyer Business is suitable for the Business. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the material Company IT Systems used or held purposes for use in the operation of the Business are sufficient to conduct the Business as which it is conducted as of the date hereof, (ii) to the Knowledge of the Parent, the Company’s currently being used and each of the Transferred Subsidiaries’ collection, processing, transmission, transfer, use, disclosure, storage, disposal and security of Protected Information complies with all applicable privacy policies is free from material defects or disclosures published by the Company or the applicable Transferred Subsidiary and (iii) to the Knowledge of the Parent, in the past three (3) years, there has not been any data security breach or unauthorized access, use or disclosure of any Protected Information owned, stored, maintained or controlled by or on behalf of the Company or any of the Transferred Subsidiariesdeficiencies.
Appears in 1 contract
Samples: Securities Purchase Agreement (Canadian Satellite Radio Holdings Inc.)
