Intellectual Property and Proprietary Rights. (a) Schedule 2.6(a) sets forth a true, correct and complete list of all Intellectual Property, and any Contracts relating to the Intellectual Property (other than trade secrets, know-how and goodwill attendant to the Intellectual Property and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to the conduct of the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller and the Intellectual Property licensed to or used by Seller. (b) Except as set forth on Schedule 2.6(b), Seller has not interfered with, infringed upon or misappropriated any Intellectual Property rights of any Person, and Seller (and management level employees with direct responsibility for Intellectual Property matters) has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller. (c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license to use, the Intellectual Property, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iii) all registrations with and applications to Governmental Entities in respect of the Intellectual Property are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) Seller has taken reasonable measures to protect the secrecy, confidentiality and value of its trade secrets; and (vii) Seller is not, nor has it received any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property. (d) Except as identified on Schedule 2.6(d), no approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement. (e) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual Property, other than maintenance fees. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from the date hereof, including the payment of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property. (f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights"). Except as set forth in Schedule 2.6(f), all right, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has any interest in the Software. Each of the representations in Sections 2.6(b) through 2.6(e), inclusive, is applicable to the Software Rights. (g) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto. (h) All copies of the Software embodied in physical form are being delivered to Buyer at or prior to the Closing. (i) Seller has kept secret and has not disclosed the source code for the Software to any Person other than certain employees of Seller who are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code. (j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not. (k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k), no former or current IP Participant has filed, asserted in writing or, to Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), threatened any claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as set forth on Schedule 2.6(k), no IP Participant has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by Seller which patents or applications have not been assigned to Seller. (l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller. (m) With respect to privacy and security agreements and contractual commitments (the "Commitments"), (i) Seller is in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitments. (n) Except as set forth on Schedule 2.6(n), Seller has in its possession or control: (i) correct and complete, fully-executed copies of all of the Contracts (as amended to date) that are required to be identified on any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n).
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Intellectual Property and Proprietary Rights. (aSchedule 4.1(a)(v) Schedule 2.6(a) sets forth contains a true, correct complete and complete accurate list of all Intellectual PropertyProperty and Proprietary Rights used in the operation of the Business, and any Contracts relating to the Intellectual Property (other than trade secrets, know-how and goodwill attendant to the all such Intellectual Property and Proprietary Rights are included in the Assets. There is no reasonably foreseeable or threatened loss or expiration of any Intellectual Property or Proprietary Rights included in the Assets. The Chex Entities have taken commercially reasonable and appropriate actions to maintain and protect such Intellectual Property and Proprietary Rights. The Chex Entities have good and marketable title to, or valid and continuing licenses to use, Intellectual Property and Proprietary Rights and other intellectual property rights not reducible to schedule form) owned, licensed to or intangible assets used by Seller with respect to in the conduct operation of the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller and the Intellectual Property licensed to or used by Seller.
(b) Except as set forth on Schedule 2.6(b), Seller has not interfered with, infringed upon or misappropriated any Intellectual Property rights of any Person, and Seller (and management level employees with direct responsibility for Intellectual Property matters) has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license to use, the Intellectual Property, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iii. As of the Closing Date, the Chex Entities shall have assigned all ownership in the Intellectual Property and Proprietary Rights listed in Schedule 4.1(a)(v) to Game Financial, and such Intellectual Property and Proprietary Rights are not and will not be subject to any Liens. That Intellectual Property and those Proprietary Rights include all registrations with and applications to Governmental Entities in respect of the Intellectual Property are valid and in full force Proprietary Rights necessary and/or used to conduct the Business as currently conducted and effect and Seller has taken all action required proposed to maintain their validity and effectiveness; (iv) there are no restrictions on be conducted. To the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect Knowledge of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to Chex Entities, the execution of this Agreement documentation with respect to any invention, process, design, computer program Business and the Assets do not infringe upon the Proprietary Rights or other know-how rights or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory interests of any Person; (vi) Seller has taken reasonable measures . There are no present or threatened Actions relating to protect the secrecy, confidentiality and value infringement of its trade secrets; and (vii) Seller is not, nor has it received Proprietary Rights by any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property.
(d) Except as identified on Schedule 2.6(d), no approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement.
(e) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual Property, other than maintenance fees. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from the date hereof, including the payment of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property.
(f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights")Person. Except as set forth in Schedule 2.6(f6.5, there are no pending or threatened proceedings or litigation or other adverse claims by any Person against a Chex Entity relating to the ownership or use of any Proprietary Rights used in the operation of the Business or the Intellectual Property listed in Schedule 4.1(a)(v). Except as listed on Schedule 6.5, to the Knowledge of the Chex Entities, no Person has or is currently infringing or diluting any of the rights of the Chex Entities in or to that Intellectual Property and Proprietary Rights. Except as set forth on Schedule 6.5, no such Intellectual Property or Proprietary Rights have been abandoned, and none are subject to any outstanding Governmental Order, written restriction or agreement restricting their scope of use. Except as indicated on Schedule 6.5, each of the registered Chex Marks, Intellectual Property and Proprietary Rights set forth in Schedule 4.1(a)(v) were duly registered, and those registrations remain in full force and effect. Except as set forth on Schedule 6.5, to the Knowledge of the Chex Entities, there are no material infringing or diluting uses of any of the Chex Marks, Intellectual Property or Proprietary Rights included in the Assets. Except as set forth on Schedule 6.5, no Chex Entity has granted any license (other than such licenses and permissions for one-time or limited use granted in the ordinary course of business) to any Person to use any of the Intellectual Property or Proprietary Rights listed in Schedule 4.1(a)(v). That Intellectual Property and those Proprietary Rights are not subject to any transfer, assignment, site, equipment, or other operational limitation. All assigned Intellectual Property and Proprietary Rights include, to the extent applicable, the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), techniques, tools, and higher level or “proprietary” language used for development, maintenance, implementation and/or use, so that a trained computer programmer could develop, maintain, support, compile and use all releases or separate versions. There are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the assigned Intellectual Property and Proprietary Rights by any Person other than as disclosed in Schedule 6.6(a)(i). All employees, agents, consultants or contractors who contributed to or participated in the creation or development of any assigned Intellectual Property and Proprietary Rights: (i) are a party to a “work-for-hire” agreement under which a Chex Entity or its predecessor in interest is deemed to be the original owner/author of all property rights therein; or (ii) have executed an assignment or an agreement to assign to a Chex Entity or its predecessor in interest all right, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has any interest in the Softwaresuch material. Each All of the foregoing representations and warranties in Sections 2.6(b) through 2.6(e), inclusive, is applicable to the Software Rights.
(g) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of the Software embodied in physical form are being delivered to Buyer at or prior to the Closing.
(i) Seller has kept secret and has not disclosed the source code for the Software to any Person other than certain employees of Seller who this Subsection 6.5 are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not.
(k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used qualification contained in the industry to protect rights last sentence of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k), no former or current IP Participant has filed, asserted in writing or, to Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), threatened any claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as set forth on Schedule 2.6(k), no IP Participant has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by Seller which patents or applications have not been assigned to SellerSubsection 6.26 below.
(l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller.
(m) With respect to privacy and security agreements and contractual commitments (the "Commitments"), (i) Seller is in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitments.
(n) Except as set forth on Schedule 2.6(n), Seller has in its possession or control: (i) correct and complete, fully-executed copies of all of the Contracts (as amended to date) that are required to be identified on any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n).
Appears in 1 contract
Samples: Asset Purchase Agreement (Fastfunds Financial Corp)
Intellectual Property and Proprietary Rights. (a) Schedule 2.6(a) sets forth a true, correct and complete list of lists all Intellectual Property, and any Contracts relating to the Intellectual Property (other than trade secrets, know-how and goodwill attendant to the Intellectual Property and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to the operation or use of the Purchased Assets in the conduct of Seller's business in the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller and the Intellectual Property licensed to or used by Sellerordinary course.
(b) Except as set forth on Schedule 2.6(b), None of the Seller has not interfered IP Rights interfere with, infringed upon infringe upon, misappropriate or misappropriated violate any Intellectual Property rights of any Person, and Seller (and management level employees with direct responsibility for Intellectual Property matters) has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of SellerSeller IP Rights.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license to use, the Intellectual Property, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iii) all registrations with and applications to Governmental Entities in respect of the Intellectual Property are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) Seller has taken reasonable measures to protect the secrecy, confidentiality and value of its trade secrets; and (vii) Seller is not, nor has it received any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property.
(d) Except as identified on Schedule 2.6(d), no No approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property Seller IP Rights shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement.
(ed) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no No licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual Property, other than maintenance feesSeller IP Rights. Schedule 2.6(e2.6(d) lists all actions that must be taken by Seller within one year from the date hereof, including the payment of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property.
(f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights"). Except as set forth in Schedule 2.6(f), all right, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has any interest in the Software. Each of the representations in Sections 2.6(b) through 2.6(e), inclusive, is applicable to the Software IP Rights.
(ge) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of the Software embodied in physical form are being delivered to Buyer at or prior to the Closing.
(i) Seller has kept secret and has not disclosed the source code for the Software to any Person other than certain employees of Seller who are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of any of the Software Seller IP Rights nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner any of the Software Seller IP Rights whether requiring the payment of royalties or not.
(kf) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by All of the Seller and IP Rights for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All None of the former and or current managers, employees, agents, consultants and or independent contractors who of Seller have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k), no former or current IP Participant has filed, asserted in writing or, to Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), threatened any claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as set forth on Schedule 2.6(k), no IP Participant has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by Seller which patents or applications have not been assigned to Seller.
(l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller.
(m) With respect to privacy and security agreements and contractual commitments (the "Commitments"), (i) Seller is in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitments.
(n) Except as set forth on Schedule 2.6(n), Seller has in its possession or control: (i) correct and complete, fully-executed copies of all of the Contracts (as amended to date) that are required to be identified on any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n)IP Rights.
Appears in 1 contract
Intellectual Property and Proprietary Rights. (a) Schedule 2.6(a2.1(a)(vii) sets forth contains a true, correct complete and complete accurate list of each category of Intellectual Property of the Seller Companies included in the Purchased Assets. There is no reasonably foreseeable or, to the Knowledge of the Seller Companies, threatened loss of any Assigned IP. The Seller Companies have taken commercially reasonable and appropriate actions to maintain and protect the Assigned IP. The consummation of the transactions contemplated hereby shall not result in the expiration or loss of any material Assigned IP.
(b) The Seller Companies have good and marketable title to, or valid and continuing licenses to use, all Intellectual PropertyProprietary Rights and other intangible assets used in their operation of the Business. The Seller Companies will assign as of the First Closing such ownership of, or such rights by license or other agreement to use, all of the Assigned IP as is necessary to permit the Purchaser to conduct the Business as currently conducted. None of the Assigned IP is subject to any Encumbrances.
(c) The Business and the Purchased Assets do not infringe upon the Proprietary Rights or other rights or interests of any Contracts Person and there are no present or, to the Knowledge of the Seller Companies, threatened infringements relating to the Intellectual Property (other than trade secrets, know-how and goodwill attendant to the Intellectual Property and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to the conduct of the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller and the Intellectual Property licensed to or used Intangible Assets by Seller.
(b) Except as set forth on Schedule 2.6(b), Seller has not interfered with, infringed upon or misappropriated any Intellectual Property rights of any Person, and Seller (and management level employees with direct responsibility for Intellectual Property matters) has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license to use, the Intellectual Property, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iii) all registrations with and applications to Governmental Entities in respect of the Intellectual Property are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) Seller has taken reasonable measures to protect the secrecy, confidentiality and value of its trade secrets; and (vii) Seller is not, nor has it received any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property.
(d) Except as identified on Schedule 2.6(d), no approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement.
(e) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual Property, other than maintenance fees. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from the date hereof, including the payment of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property.
(f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights"). Except as set forth in Schedule 2.6(f)4.6, all rightthere are no pending or, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has any interest in the Software. Each Knowledge of the representations in Sections 2.6(b) through 2.6(e)Seller Companies, inclusivethreatened Actions by any Person against the Seller Companies relating to their use of any Intellectual Property. Except as listed on Schedule 4.6, is applicable to the Software Rights.
(g) The Software performs Knowledge of the Seller Companies, no Person has or is currently infringing or diluting any of the Seller Companies' rights in accordance with the documentation and other written materials related or to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of the Software embodied in physical form are being delivered to Buyer at or prior to the Closing.
(i) Seller has kept secret and has not disclosed the source code for the Software to any Person other than certain employees of Seller who are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not.
(k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for SellerAssigned IP. Except as set forth on Schedule 2.6(k)4.6, no former none of the Marks included in the Purchased Assets has been abandoned and none of the Marks included in the Purchased Assets, nor any copyright included in the Purchased Assets is subject to any outstanding order, decree, judgment, stipulation, injunction, written restriction or current IP Participant has filedagreement restricting the scope of use thereof, asserted in writing or, any case which would reasonably be expected to Seller's Knowledge (or management employees have a Material Adverse Effect. Each of Seller with direct responsibility for Intellectual Property matters), threatened any claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in the registered Marks and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as copyrights set forth on Schedule 2.6(k), no IP Participant 4.6 has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by Seller which patents or applications have not been assigned to Seller.
(l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller.
(m) With respect to privacy duly registered and security agreements and contractual commitments (the "Commitments"), (i) Seller is such registrations remain in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement force and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitments.
(n) effect. Except as set forth on Schedule 2.6(n)4.6, Seller has in its possession or control: (i) correct and complete, fully-executed copies of all to the Knowledge of the Contracts Seller Companies, there are no material infringing or diluting uses of the Marks. Except as set forth on Schedule 4.6, the Seller Companies have not granted any license (as amended other than such licenses and permissions for one-time or limited use granted in the ordinary course of business) to date) that are required any Person to be identified on use any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n)Marks.
Appears in 1 contract
Intellectual Property and Proprietary Rights. (a) Schedule 2.6(a4.6(a) sets forth a true, correct and complete list of all certain Business Intellectual Property, and any Contracts relating to the including all registered Business Intellectual Property (other than trade secrets“Registered Intellectual Property”), know-how and goodwill attendant to sets forth the Intellectual Property owner and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to the conduct nature of the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies interest of the Intellectual Property owned by Seller and the Intellectual Property licensed to or used by SellerSellers therein.
(ba) Except as set forth on Schedule 2.6(b), Seller has not interfered with, infringed upon or misappropriated any Intellectual Property rights The Sellers are the owners of any Person, and Seller (and management level employees with direct responsibility for Intellectual Property matters) has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license to use, the Intellectual Property, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iii) all registrations with and applications to Governmental Entities in respect of the Intellectual Property are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) Seller has taken reasonable measures to protect the secrecy, confidentiality and value of its trade secrets; and (vii) Seller is not, nor has it received any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property.
(d) Except as identified on Schedule 2.6(d), no approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement.
(e) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual Property, other than maintenance fees. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from the date hereof, including the payment of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property.
(f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights"). Except as set forth in Schedule 2.6(f), all right, title and interest in and to each item of Business Intellectual Property and/or have the Software is owned by Seller free full, complete and clear of all Liensexclusive right to use and to sell, is fully transferable convey, transfer, assign and deliver to BuyerPurchaser the Business Intellectual Property. To the extent disclosed in Schedule 4.6(a), the Registered Intellectual Property has been duly registered with, filed in or issued by, as the case may be, the United States Patent and Trademark Office, the United States Copyright Office or other filing offices, domestic or foreign, and no party any domain name registrar, to the extent necessary or desirable to ensure full protection under any applicable Law (including, for the purposes of this Section 4.6(a) only, any policies maintained by applicable domain name registrars), and such registrations, filings, issuances and other than Seller has any interest actions remain in the Softwarefull force and effect. Each The Sellers have taken all reasonably necessary steps to ensure protection of the representations in Sections 2.6(bBusiness Intellectual Property under any applicable Law (including, for the purposes of this Section 4.6(a) through 2.6(eonly, any policies maintained by applicable domain name registrars), inclusive, is applicable to the Software Rights.
(gb) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies operation of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of Business by the Software embodied in physical form are being delivered to Buyer at or Sellers prior to the Closing.
(i) Seller has kept secret and has , including all use of any Business Intellectual Property prior to the Closing, does not disclosed the source code for the Software to infringe, violate, or otherwise conflict with, any Intellectual Property or other right of any Person other than certain employees of Seller who are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller no claim is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not.
(k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k), no former or current IP Participant has filed, asserted in writing pending or, to Seller's the Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters)the Sellers, threatened with respect to any claim against Seller in connection with hisinfringement, her violation or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters)conflict resulting therefrom, except as set forth on Schedule 2.6(k)4.6(b) or except that any infringement or conflict could not, no IP Participant has any patents issued individually or applications pending for any devicethe aggregate, process, design or invention of any kind now used or needed by Seller which patents or applications reasonably be expected to have not been assigned to Sellera Material Adverse Effect.
(lc) No former To the Knowledge of the Sellers, none of the Business Intellectual Property is being infringed, violated or current shareholdermisappropriated, director nor is such Business Intellectual Property being used or officeravailable for use by any Person other than the Sellers, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Sellerexcept as set forth in Schedule 4.6(c).
(md) With respect to privacy The agreements listed in Schedule 4.6(d) hereto expire on the dates specified in Schedule 4.6(d) hereto and security agreements provide for the license fees and contractual commitments (the "Commitments"), (i) Seller is in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitments.
(n) Except amounts payable as set forth on Schedule 2.6(n), Seller has in its possession or control: (i) correct and complete, fully-executed copies of all therein. To the Knowledge of the Contracts (as amended Sellers, there are no acts, omissions, facts or circumstances that would permit a party other than the Sellers or NYT to date) that are required to be identified on terminate any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n)such agreements.
Appears in 1 contract
Intellectual Property and Proprietary Rights. (a) Except as expressly disclosed on Schedule 2.6(a) sets forth a true, correct and complete list of all Intellectual Property, and any Contracts relating to the Intellectual Property (other than trade secrets, know-how and goodwill attendant to the Intellectual Property and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to the conduct of the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller and the Intellectual Property licensed to or used by Seller.
(b) Except as set forth on Schedule 2.6(b), Seller either has not interfered with, infringed upon or misappropriated any Intellectual Property rights of any Person, and Seller (and management level employees with direct responsibility for Intellectual Property matters) has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, in or has a valid and binding license right under Purchased Contract to useuse all Intellectual Property Used in the Business as currently conducted or proposed to be conducted (collectively, the “Seller Intellectual Property”) without infringing the Rights of any Person. Schedule 2.6 lists (by name, andnumber, jurisdiction and owner) all patents and patent applications; all registered Marks; and all registered copyrights and mask works; and all other issuances, registrations, applications and the like with respect to the extent required in connection with the way in which Seller has conducted, conducts, those or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the any other Intellectual Property; . Except as disclosed in Schedule 2.6, (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iiii) all registrations with and applications to Governmental Entities in respect of the Seller Intellectual Property owned or registered by Seller are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; effect, (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) Seller has taken reasonable measures to protect the secrecy, confidentiality and value of its trade secrets; and (viiii) Seller is not, nor has it received any notice that it is, not in default (or with the giving of notice or lapse of time or both, would be in default) in any material respect under any license contract to use any Seller Intellectual Property and (iii) to the Knowledge of Seller, the Intellectual Property of the Business is not being used or infringed by any other Person. No cancellation, termination, expiration or abandonment of any of the foregoing registrations and applications in respect of Seller Intellectual Property (except natural expiration or termination at the end of the full possible term) is anticipated by Seller and Seller is not aware of any questions or challenges with respect to the patentability or validity of any claims of any of the foregoing registrations and applications. Seller has not received notice that Seller is infringing any Intellectual Property of any other Person, and to the Knowledge of Seller no claim is pending or has been made or asserted to such effect that has not been resolved and, to the Knowledge of Seller, there is no reasonable basis for any such claim. Other than as set forth on Schedule 2.6(a) or pursuant to its form of Distribution Agreement or Representative Agreement, copies of which have been delivered to Buyer, Seller has not granted rights to manufacture, produce, assemble, license, market, or sell its products or otherwise use any Seller Intellectual Property to any other Person and is not bound by any agreement that affects Seller’s right to develop, manufacture, assemble, distribute, market or sell any product or service related to the Business.
(b) Schedule 2.6(b) lists all licenses, sublicenses and other agreements pursuant to which Seller is assigned or authorized to Use in connection with the Business, or has or may incur any obligation in connection with, any Intellectual Property of any other Person or any Seller Intellectual Property. Seller has not entered into any agreement to indemnify, hold harmless or defend any other person with respect to any assertion of infringement of Seller Intellectual Property.
(c) Seller has taken reasonable and appropriate steps to protect and preserve the confidentiality of all Seller Intellectual Property not otherwise disclosed in published patents or patent applications or registered copyrights (“Seller Confidential Information”). Except as set forth on Schedule 2.6(c), all use by and disclosure to employees or others of Seller Confidential Information has been pursuant to the terms of valid and binding written confidentiality and nonuse/restricted-use agreements or agreements that contain similar obligations.
(d) Except as identified set forth on Schedule 2.6(d), no approval each current and former employee and contractor of Seller who is or consent of was involved in, or payment who has contributed to, the creation or development of any consideration to any Person is required so that the interest of Buyer in the Seller Intellectual Property shall continue has executed and delivered (and to be Seller’s knowledge, is in full force compliance with) an agreement which provides a valid written assignment to Seller of all title and effect following the transactions contemplated by this Agreement, and rights to all Seller is not subject Intellectual Property. No third party has “moral rights” or rights to terminate any restriction, agreement, instrument, order, judgment assignment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreementlicense with respect thereto.
(e) Except for To the fees identified in Schedule 2.6(eKnowledge of Seller, none of Seller’s employees or contractors is obligated under any agreement, commitment, judgment, decree, order or otherwise (an “Employee Obligation”) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection that could reasonably be expected to interfere with the use of his or her best efforts to promote the interests of Seller or that could reasonably be expected to conflict in any way with the Business. Neither the execution nor delivery of this Agreement nor the conduct of Business, will conflict with or result in a breach of the terms, conditions or provisions of, or constitute default under, any Employee Obligation of which Seller is aware. Seller is not Using, and it will not be necessary to Use, any Intellectual Property, other than maintenance fees. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from the date hereof, including the payment Property of any registration, maintenance, renewal fee, annuity fee and Tax of its employees or contractors made prior to or outside the filing scope of any document, application their employment or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Propertyengagement by Seller.
(f) Schedule 2.6(fSeller has obtained all approvals and agreements necessary or appropriate (including, without limitation, assurances from customers regarding further export) separately lists for exporting any Seller Intellectual Property outside the United States and identifies importing any Seller Intellectual Property into any country in which they are or have been disclosed, sold or licensed for Use, and all such export and import approvals in the United States and throughout the world are valid, current, outstanding and in full force and effect.
(g) All Software is free of all viruses, worms, trojan horses and other infections or harmful routines and does not contain any bugs, errors, or problems that could reasonably be expected to materially disrupt its operation or have an adverse impact on the operation of other software programs or operating systems. “Software” means software, programs, databases and related documentation, in any form (including Internet sites, Internet content and links) that is (i) computer programsmaterial to the operation of the Business, (ii) computer databases (including, but not limited to, databases that operated by seller on its web sites or used by seller in conjunction connection with such computer programsprocessing customer’s orders, storing customer’s information, or storing or archiving data, or (ii) and (iii)manufactured, specificationsdistributed, manuals and materials associated therewith, ownedsold, licensed or used marketed by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights"). Except as set forth in Schedule 2.6(f), all right, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has any interest in the Software. Each of the representations in Sections 2.6(b) through 2.6(e), inclusive, is applicable to the Software Rights.
(g) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of the Software embodied in physical form are being delivered to Buyer at or prior to the Closing.
(i) Seller has kept secret and has not disclosed the source code for the Software to any Person other than certain employees of Seller who are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not.
(k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k), no former or current IP Participant has filed, asserted in writing or, to Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), threatened any claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as set forth on Schedule 2.6(k), no IP Participant has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by Seller which patents or applications have not been assigned to Seller.
(l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller.
(m) With respect to privacy and security agreements and contractual commitments (the "Commitments"), (i) Seller is in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitments.
(n) Except as set forth on Schedule 2.6(n), Seller has in its possession or control: (i) correct and complete, fully-executed copies of all of the Contracts (as amended to date) that are required to be identified on any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n).
Appears in 1 contract
Samples: Asset Purchase Agreement (Alliance Semiconductor Corp /De/)
Intellectual Property and Proprietary Rights. (aSCHEDULE 1(a)(i) Schedule 2.6(a) sets forth contains a true, correct true and complete list of all Intellectual Propertypatents, patent applications, trade names, trademarks, service marks, trademark and service mark registrations and applications, copyright registrations and applixxxxons, and any Contracts relating grants of a license or right to the Intellectual Property (other than trade secrets, know-how and goodwill attendant to the Intellectual Property and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to any of the foregoing (other than off-the-shelf software customarily sold by vendors), owned or claimed to be owned by Seller and used or proposed to be used by Seller in the conduct of the Business as presently conducted Business, whether registered or presently not. The Seller owns and has the unrestricted right to use the Intellectual Property Rights and every trade secret, know-how, process, discovery, development, design, technique, customer and supplier list, marketing and purchasing strategy, invention, process, confidential data and/or other information (collectively, "PROPRIETARY INFORMATION") required for or incident to the sale and use of all products and services sold or rendered or proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller and the Intellectual Property licensed to sold or used rendered by Seller.
(b) Except as set forth on Schedule 2.6(b), Seller has not interfered with, infringed upon or misappropriated any Intellectual Property rights of any Person, and Seller (and management level employees with direct responsibility for Intellectual Property matters) has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license to use, the Intellectual Property, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iii) all registrations with and applications to Governmental Entities in respect any right, equity or claim of the Intellectual Property are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) others. The Seller has taken reasonable security measures to protect the secrecy, confidentiality and value of its trade secrets; and (vii) Seller is not, nor has it received any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property.
(d) Except as identified on Schedule 2.6(d), no approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement.
(e) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual Property, other than maintenance fees. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from the date hereof, including the payment of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property.
(f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights")Proprietary Information. Except as set forth in Schedule 2.6(fSCHEDULE 1(a)(i), all right, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has not sold, transferred, assigned, licensed or subjected to any Lien any Intellectual Property Right or Proprietary Information or any interest in the Softwaretherein. Each The Seller is not obligated or under any liability whatsoever to make any payments by way of the representations in Sections 2.6(b) through 2.6(e)royalties, inclusive, is applicable to the Software Rights.
(g) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of the Software embodied in physical form are being delivered to Buyer at fees or prior to the Closing.
(i) Seller has kept secret and has not disclosed the source code for the Software otherwise to any Person owner or licensor of, or other than certain employees claimant to, any Intellectual Property Right or Proprietary Information. No Intellectual Property Right or Proprietary Information conflicts with, infringes on or otherwise violates any rights of Seller who are others or is subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not.
(k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k), no former or current IP Participant has filed, asserted in writing pending or, to Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters)knowledge, threatened any litigation or other adverse claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as set forth on Schedule 2.6(k), no IP Participant has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed infringement by Seller which patents or applications have not been assigned to Seller.
(l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller.
(m) With respect to privacy and security agreements and contractual commitments (the "Commitments"), (i) Seller is in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any CommitmentsPerson.
(n) Except as set forth on Schedule 2.6(n), Seller has in its possession or control: (i) correct and complete, fully-executed copies of all of the Contracts (as amended to date) that are required to be identified on any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n).
Appears in 1 contract
Intellectual Property and Proprietary Rights. (aSchedule 4.1(a)(vi) Schedule 2.6(a) sets forth contains a true, correct complete and complete accurate list of all Intellectual Property, and any Contracts relating to the Intellectual Property (other than trade secrets, know-how and goodwill attendant to the Intellectual Property and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to the conduct of the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller Netzee that is used in the Business, and all such Intellectual Property is included in the Assigned IP and the Intellectual Property licensed to Purchased Assets. Other than as listed in Schedule 6.5 and expiration by operation of Law, there is no reasonably foreseeable or used by Seller.
(b) Except as set forth on Schedule 2.6(b), Seller has not interfered with, infringed upon or misappropriated any Intellectual Property rights threatened expiration of any Person, Assigned IP. Netzee has taken commercially reasonable and Seller (appropriate actions to maintain and management level employees with direct responsibility for Intellectual Property matters) protect against known or suspected infringements of the Assigned IP. Netzee has never received any charge, complaint, claim, demandtitle to, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license continuing licenses to use, the Intellectual Propertyall Assigned IP. As of Closing, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes to conduct the Business, to make, have made, use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of Netzee assigns all Liens; (iii) all registrations with and applications to Governmental Entities in respect of the Intellectual Property are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included ownership in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content Assigned IP to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) Seller has taken reasonable measures to protect the secrecy, confidentiality and value of its trade secrets; and (vii) Seller is not, nor has it received any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property.
(d) Except as identified on Schedule 2.6(d), no approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement.
(e) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual Property, other than maintenance fees. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from the date hereof, including the payment of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property.
(f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectively, the "Software Rights")Certegy. Except as set forth in Schedule 2.6(f6.5, none of the Assigned IP is subject to any Encumbrances. The Assigned IP includes all of the proprietary rights necessary to conduct the Business as currently conducted. Except as set forth in Schedule 6.5, the use of the Assigned IP in the Business does not infringe upon the proprietary rights of any Person and there are no present or, to Netzee's knowledge, threatened Actions relating to the Assigned IP by any Person. Except as set forth in Schedule 6.5, there are no pending, or to Netzee's knowledge, threatened proceedings or litigation or other adverse claims by any Person against Netzee relating to its ownership or use of any Assigned IP. Except as listed on Schedule 6.5, no Person has or is materially infringing or diluting any of Netzee's rights in or to the Assigned IP. Except as set forth on Schedule 6.5, none of the Netzee Marks included in the Purchased Assets has been abandoned, and the Netzee Marks and copyrights included in the Purchased Assets are not subject to any outstanding Governmental Order, written restriction or agreement restricting their scope of use. Each of the registered Netzee Marks and copyrights set forth in Schedule 4.1(a)(vi) were duly registered, and such registrations will remain in full force and effect as of the Closing. Except as set forth on Schedule 6.5, Netzee has not granted any license (other than such licenses and permissions for one-time or limited use granted in the ordinary course of business) to any Person to use any of the Assigned IP. Except as set forth in Schedule 6.5, no Assigned IP is subject to any transfer, assignment, or site limitations. All Assigned IP includes, to the extent applicable, the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), techniques, tools, and higher level or "proprietary" language used for development, maintenance, implementation and/or use, so that a trained computer programmer could develop, maintain, support, compile and use all releases or separate versions. There are no agreements or arrangements in effect with respect to the marketing, distribution, licensing or promotion of the Assigned IP by any Person other than as disclosed in Schedule 4.1(a)(vi). All employees, agents, consultants or contractors who contributed to or participated in the creation or development of any of the Assigned IP: (i) are a party to a "work-for-hire" agreement under which Netzee or its predecessor in interest is deemed to be the original owner/author of all property rights therein; or (ii) have executed an assignment or an agreement to assign to Netzee or its predecessor in interest all right, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has any interest in the Software. Each of the representations in Sections 2.6(b) through 2.6(e), inclusive, is applicable to the Software Rightssuch material.
(g) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of the Software embodied in physical form are being delivered to Buyer at or prior to the Closing.
(i) Seller has kept secret and has not disclosed the source code for the Software to any Person other than certain employees of Seller who are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not.
(k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k), no former or current IP Participant has filed, asserted in writing or, to Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), threatened any claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as set forth on Schedule 2.6(k), no IP Participant has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by Seller which patents or applications have not been assigned to Seller.
(l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller.
(m) With respect to privacy and security agreements and contractual commitments (the "Commitments"), (i) Seller is in full compliance with all applicable Commitments; (ii) the transactions contemplated by this Agreement and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written (including email) complaints from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitments.
(n) Except as set forth on Schedule 2.6(n), Seller has in its possession or control: (i) correct and complete, fully-executed copies of all of the Contracts (as amended to date) that are required to be identified on any of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n).
Appears in 1 contract
Intellectual Property and Proprietary Rights. (a) Schedule 2.6(a4.7(a) sets forth hereto contains a true, correct and complete list list, as of the date hereof, of all Intellectual Property, and any Contracts relating to the material Intellectual Property (other than trade secrets, know-how and goodwill attendant to included in the Intellectual Property and other intellectual property rights not reducible to schedule form) owned, licensed to or used by Seller with respect to the conduct of the Business as presently conducted or presently proposed to be conducted. Schedule 2.6(a) separately identifies the Intellectual Property owned by Seller and the Intellectual Property licensed to or used by SellerStation Assets.
(b) Except as TSG or TSG License Subsidiary owns or has a valid license or other right to use pursuant to a Contract set forth on Schedule 2.6(b), Seller has not interfered with, infringed upon 4.8(a) all Proprietary Rights used or misappropriated any Intellectual Property rights of any Person, and Seller (and management level employees with direct responsibility held for Intellectual Property matters) has never received any charge, complaint, claim, demand, use in or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any Person). To Seller's Knowledge, no Person has interfered with, infringed upon or misappropriated any Intellectual Property rights of Seller.
(c) Except as set forth on Schedule 2.6(c), (i) Seller owns all right, title and interest in, or has a valid and binding license to use, the Intellectual Property, and, to the extent required in connection with the way in which Seller has conducted, conducts, or presently proposes necessary to conduct the BusinessBusiness in the ordinary course of business, to makeconsistent with past practice (collectively, have madethe “Business Proprietary Rights”), use, sell, import and export, distribute, publicly perform, publicly display, reproduce and prepare derivative works of the Intellectual Property; (ii) the rights of Seller to the Intellectual Property are free and clear of all Liens; (iii) all registrations with and applications to Governmental Entities in respect of the Intellectual Property are valid and in full force and effect and Seller has taken all action required to maintain their validity and effectiveness; (iv) there are no restrictions on the direct or indirect (A) transfer of any license, or any interest therein, held by Seller in respect of the Intellectual Property or (B) changes of control of Seller; (v) Seller has delivered to Buyer prior to the execution of this Agreement documentation with respect to any invention, process, design, computer program or other know-how or trade secret included in the Intellectual Property, which documentation is accurate in all material respects and reasonably sufficient in detail and content to identify and explain such invention, process, design, computer program or other know-how or trade secret and to facilitate its use without reliance on the special knowledge or memory of any Person; (vi) Seller has taken reasonable measures to protect the secrecy, confidentiality and value of its trade secrets; and (vii) Seller is not, nor has it received any notice that it is, in default (or with the giving of notice or lapse of time or both, would be in default) under any license with respect to the Intellectual Property.
(d) Except as identified on Schedule 2.6(d), no approval or consent of or payment of any consideration to any Person is required so that the interest of Buyer in the Intellectual Property shall continue to be in full force and effect following the transactions contemplated by this Agreement, and Seller is not subject to any restriction, agreement, instrument, order, judgment or decree which would be violated or breached by the consummation of the transactions contemplated by this Agreement.
(e) Except for the fees identified in Schedule 2.6(e) for the agreements identified therein, no licensing fees, royalties or payments are due or payable by Seller in connection with the Intellectual PropertyEncumbrances, other than maintenance feesPermitted Encumbrances, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Schedule 2.6(e) lists all actions that must be taken by Seller within one year from To the date hereof, including the payment Knowledge of any registration, maintenance, renewal fee, annuity fee and Tax or the filing of any document, application or certificate for the purposes of maintaining, perfecting or preserving or renewing any Intellectual Property.
(f) Schedule 2.6(f) separately lists and identifies all (i) computer programs, (ii) computer databases (including, but not limited to, databases used in conjunction with such computer programs) and (iii), specifications, manuals and materials associated therewith, owned, licensed or used by Seller, excluding generally available off-the-shelf microcomputer and work station software (collectivelyno Person is infringing upon, the "Software Rights"). Except as set forth in Schedule 2.6(f), all right, title and interest in and to the Software is owned by Seller free and clear of all Liens, is fully transferable to Buyer, and no party other than Seller has misappropriating or otherwise conflicting with any interest in the Software. Each of the representations in Sections 2.6(b) through 2.6(e), inclusive, is applicable to the Software Business Proprietary Rights.
(g) The Software performs in accordance with the documentation and other written materials related to the Software and is free from substantial defects in programming and operations, is in machine readable form, contains all current revisions of such Software, and includes all computer programs, materials, tapes, know-how, object and source codes, other written materials, know-how and processes related to the Software. Seller has delivered to Buyer complete and correct copies of the Software in its current form and all user and technical documentation related thereto.
(h) All copies of the Software embodied in physical form are being delivered to Buyer at or prior to the Closing.
(i) Seller has kept secret and has not disclosed the source code for the Software to any Person other than certain employees of Seller who are subject to the terms of a binding confidentiality agreement with respect thereto. Seller has taken all appropriate measures to protect the confidentiality and proprietary nature of the Software, including the use of confidentiality agreements with all of its employees and consultants having access to the Software source and object code.
(j) No employee of Seller is in default under, and the consummation of the transactions contemplated by this Agreement will not result in a default of, any term of any employment Contract relating to the Software or any noncompetition arrangement, or any other Contract or any restrictive covenant relating to the Software or its development or exploitation. Seller does not have any obligation to compensate any Person for the development, use, sale or exploitation of the Software nor has Seller granted to any other Person or entity any license, option or other rights to develop, use, sell or exploit in any manner the Software whether requiring the payment of royalties or not.
(k) Except as set forth on Schedule 2.6(k), all Intellectual Property owned by Seller and for which confidentiality is appropriate has been maintained in confidence in accordance with protection procedures believed by Seller to be adequate for protection customarily used in the industry to protect rights of like importance. All former and current managers, employees, agents, consultants and independent contractors who have authored, co-authored or otherwise contributed to or participated in the conception and development of Intellectual Property which is used in and material to the Business ("IP Participant"), have executed and delivered to Seller a proprietary information agreement, pursuant to which, inter alia, such IP Participant has assigned any and all of his, her or its rights in such Intellectual Property to Seller and has agreed to keep such Intellectual Property confidential and not to use such Intellectual Property for any purpose unrelated to his, her or its work for Seller. Except as set forth on Schedule 2.6(k)4.7(b) and except as would not, no former individually or current IP Participant has filed, asserted in writing orthe aggregate reasonably be expected, to Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), threatened any claim against Seller in connection with his, her or its involvement in Intellectual Property which is used in and material to the Business. To Seller's Knowledge (or management employees of Seller with direct responsibility for Intellectual Property matters), except as set forth on Schedule 2.6(k), no IP Participant has any patents issued or applications pending for any device, process, design or invention of any kind now used or needed by Seller which patents or applications have not been assigned to Seller.
(l) No former or current shareholder, director or officer, employee or independent contractor of Seller has any right to receive royalty payments or license fees from Seller.
(m) With respect to privacy and security agreements and contractual commitments (the "Commitments")a Material Adverse Effect, (i) Seller no claims have been made or, to the Knowledge of Seller, threatened contesting the validity, use, ownership, or enforceability of any Business Proprietary Rights, and, to the Knowledge of Seller, there is in full compliance with all applicable Commitments; no reasonable basis for any such claim, and (ii) the transactions contemplated by this Agreement conduct of the Business does not infringe upon, misappropriate or otherwise conflict with any Proprietary Rights or other rights of other Persons, and the Transaction Documents will not violate any Commitments; (iii) Seller has not received inquiries from the Federal Trade Commission or any other Governmental Entity regarding Commitments; (iv) Seller has not received any written notices regarding any of the foregoing (including email) complaints including, any demands or offers to license any Proprietary Rights from any web site user regarding Commitments, or compliance with Commitments; (v) the Commitments have not been rejected by any applicable certification organization which has reviewed such Commitment or to which any such Commitment has been submitted and (vi) Seller has not experienced the cancellation, termination or revocation of any privacy or security certification issued by any Commitmentsother Person).
(nc) Except The call letters for the Station and all other material Intellectual Property owned by either Operating Company and necessary for or used by the Station or the Business, have been duly applied for or registered in, filed in or issued by, as applicable, the appropriate Governmental Authority, in the name of such Operating Company, where such registration, filing or issuance is necessary for the Business. All Intellectual Property included in the Station Assets that has been registered in, filed in or issued by a Governmental Authority is so indicated on Schedule 4.7(a) hereto. All Intellectual Property registrations identified in Schedule 4.7(a) are valid, subsisting, enforceable and in good standing and all applications identified in Schedule 4.7(a) are pending without challenge (other than routine office actions that may be pending before the Patent and Trademark Office or its foreign equivalents).
(d) The computer systems and related systems, including the software, firmware, hardware, networks, interfaces, and related systems owned or used by the Operating Companies in the conduct of Business (collectively, “Business Systems”) are sufficient in all material respects to conduct the Business in the ordinary course of business, consistent with past practice. Schedule 4.7(a) contains a list and description (showing in each case any owner, licensor or licensee) of all software used by the Operating Companies in respect of the Business, except software licensed to the Operating Companies that is available in consumer retail stores or similar retail outlets and subject to “shrink-wrap” or similar consumer license agreements with a replacement cost and/or annual license fee of less than $10,000. No TSG Company has sold, licensed or otherwise disposed of any Proprietary Rights to any Person except pursuant to a Contract set forth on Schedule 2.6(n4.8(a). The Business Proprietary Rights are not subject to any outstanding consent, Seller has in its possession settlement, decree, order, injunction, judgment or control: ruling restricting the use thereof.
(ie) correct and complete, fully-executed copies of all The consummation of the Contracts (as amended transactions contemplated hereby and by the other Transaction Documents does not and will not conflict with, alter, or impair the Operating Companies’ rights with respect to date) that are required any Business Proprietary Rights or Business System and, subject to the receipt of the Consents set forth on Schedule 4.3, Purchaser will own or have a right to use the Business Proprietary Rights and the Business Systems on substantially similar terms immediately following the consummation of the transactions contemplated hereby. Subject to the receipt of the Consents set forth on Schedule 4.3, each Contract relating to the Business Proprietary Rights or the Business Systems will continue to be identified valid, binding, and enforceable, and in full force and effect on any substantially similar terms immediately following the consummation of the schedules required by this Section 2.6; and (ii) correct and complete copies of all documents (including without limitation patents, registration certificates, renewal certificates, applications, prosecution histories, and all documents submitted to or received from the relevant patent, copyright, trademark, domain name or other authorities in the United States and foreign jurisdictions, as the case may be) relating to each item of the Intellectual Property identified on Schedule 2.6(a). Seller has delivered to Buyer correct and complete, fully-executed copies of all of the documents described in this Section 2.6(n)transactions contemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (Nexstar Broadcasting Group Inc)
