Intellectual Property; Computer Software. (a) The Company and its Subsidiaries own or otherwise hold the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or as formerly conducted by the Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights. (b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(i) of the Company Disclosure Letter, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP or of the Company and its Subsidiaries’ rights under the Necessary IP Rights. Neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. As of the date of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee of the Company or any of its Subsidiaries, including by the sale, marketing, distribution or provision of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, to the Company’s knowledge, are threatened by any Person. (i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IP, free and clear of any Encumbrances, except for Permitted Encumbrances, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, and (iii) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products. (d) Section 3.17(d)(i) of the Company Disclosure Letter contains a true and complete list of all Registered IP. The Company and its Subsidiaries have taken all actions necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to any office actions and disclosure of all required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate Governmental Authorities. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and all Registered IP is valid and enforceable. The Company has no knowledge either of any prior art references that have not been properly disclosed or any prior public uses, sales, offers for sale or disclosures that would reasonably be expected to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, and, to the knowledge of the Company, no such proceedings are, as of the date of this Agreement, threatened or contemplated by any Governmental Agency or any other Person. (e) Section 3.17(e)(i) of the Company Disclosure Letter contains a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii) of the Company Disclosure Letter contains a true and complete list, as of the date of this Agreement, of (A) all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof to a third party and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code. (f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof. (g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries and the Company has provided true and complete copies of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product. (h) Section 3.17(h) of the Company Disclosure Letter contains a true and complete list of all Company Software Products as of the date hereof. (i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product. (j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”). (k) Except as listed in Section 3.17(k) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person. (l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or any Company Software Product. Neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP. (m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.
Appears in 2 contracts
Samples: Merger Agreement (Cognos Inc), Merger Agreement (Applix Inc /Ma/)
Intellectual Property; Computer Software. (a) The Company and its Subsidiaries own or otherwise hold the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or as formerly conducted by the Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(iSection 4.17(a)(i) of the Company Disclosure Letter, or Schedule sets forth (i) a complete and accurate list as of the date hereof of all Company Owned Intellectual Property and (ii) challenging the scope, ownership, validity, owner of such Company Owned Intellectual Property and any registration thereof or enforceability application therefor. Section 4.17(a)(ii) of the Company IP Disclosure Schedule sets forth a complete and accurate list of Contracts existing as of the date hereof pursuant to which the Company or one of the Company Subsidiaries has obtained rights to the Company Licensed Intellectual Property (other than Contracts the non-disclosure of which therein does not constitute a misrepresentation under Section 4.15(g)). All Company Owned Intellectual Property is owned by the Company or one of the Company Subsidiaries free and its Subsidiaries’ rights under clear of all Liens, other than (A) immaterial Liens that do not limit the Necessary IP Rightsability of the Company or any Company Subsidiary to use, modify, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company or any Company Subsidiary and (B) statutory Liens for Taxes not yet due or payable. Neither the Company nor any Company Subsidiary has entered into any agreements which limit in any respect its or their right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare Derivative Works of its Subsidiaries has infringedand sublicense any Company Owned Intellectual Property, misappropriated without payment or otherwise violated other material obligation, to any Intellectual Property Rights other person.
(b) Section 4.17(b) of the Company Disclosure Schedule contains a complete and accurate list of all Software owned by the Company or any Person. As Company Subsidiary as of the date of this AgreementAgreement (the OWNED SOFTWARE) that is material, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee which list specifies which of the Company or any of its Subsidiaries, including by Company Subsidiary is the sale, marketing, distribution owner thereof. The Company or provision one of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, has title to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IPOwned Software, free and clear of all Liens, including claims or rights of employees, agents, consultants, contractors, partners, inventors, customers, licensees or other parties involved in the development, creation, marketing, maintenance, enhancement or licensing of such computer software, other than (A) immaterial Liens that do not limit the ability of the Company or any EncumbrancesCompany Subsidiary to use, except for Permitted Encumbrancesmodify, (ii) no Person, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, Subsidiary and (iiiB) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license statutory Liens for Taxes not yet due or transfer of the Necessary IP Rights, the Company IP or the Company Software Productspayable.
(dc) Section 3.17(d)(i4.17(c) of the Company Disclosure Letter Schedule contains a true complete and complete accurate list of (i) all Registered IPOpen Source Software and (ii) all other Licensed Software that is material as identified by the license or other agreement by which such right to use has been obtained and the duration or term thereof. The Company and its Subsidiaries have taken all actions necessary any Company Subsidiary utilizing such Licensed Software has the rights and licenses to maintain and protect the Registered IPLicensed Software as set forth in the respective license, including payment of applicable maintenance fees, filing of applicable statements of use, timely response lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any office actions and disclosure of all required informationCompany Subsidiary, and all assignments (the Company and licenses where required) each of the Registered IP have been duly recorded Company Subsidiaries are in compliance in all material respects with the appropriate Governmental Authoritiesall applicable provisions of such agreements. None of the Registered IP Licensed Software constitutes a component of, has been adjudged invalid included, incorporated or unenforceable in whole embedded into or made a part and all Registered IP is valid and enforceable. The Company has no knowledge either of of, any prior art references that have not been properly disclosed Owned Software or any prior public usesother Licensed Software. Neither the Company nor any Company Subsidiary has published or disclosed any Licensed Software or other Third Party Software to any other party except in accordance with and as permitted by any license, saleslease or similar agreement relating to the Licensed Software or other Third Party Software, offers for sale in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or disclosures that would reasonably be expected other similar payments in respect of such distribution. No party to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which whom the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, andSubsidiary has disclosed Licensed Software has, to the knowledge of Company, breached its obligation of confidentiality in any material respect. To the knowledge of the Company, no such proceedings are(i) Open Source Software that is embedded in or bundled, shipped or distributed with any Customer Software nor (ii) any other Open Source Software (other than immaterial Open Source Software) is used in a manner that requires the contribution of any portion of any Customer Software to any person, including into the open source Software community.
(d) The Owned Software, Licensed Software and commercially available over-the-counter "shrink-wrap" Software constitute all Software used in the businesses of the Company and the Company Subsidiaries as of the date of this Agreement (collectively, the COMPANY SOFTWARE). Section 4.17(d) of the Company Disclosure Schedule sets forth a list of all contract programmers, independent contractors, nonemployee agents and persons or other entities (other than employees) who on or prior to the date hereof have performed computer programming services for the Company or any Company Subsidiary (it being understood that if any entity was engaged, the entity rather than the individual persons working for such entity are to be listed) and identifies all contracts and agreements pursuant to which such services were performed. Each such listed entity or person has executed an agreement providing that the Company or a Company Subsidiary, as the case may be, has the exclusive ownership rights to all Intellectual Property and other work product conceived, developed or produced in connection with the programming services provided by such persons. Between January 1, 1999 and the date of this Agreement, threatened none of the former or contemplated by any Governmental Agency current members of management or key personnel of the Company or any Company Subsidiary, including all former and current employees, agents, consultants and contractors who have contributed to or participated in the conception and development of Company Owned Intellectual Property has asserted any claim against the Company or any Company Subsidiary in connection with the involvement of such persons in the conception and development of any Company Owned Intellectual Property, and to the knowledge of the Company no such claim has been threatened. To the knowledge of the Company, no other Personperson or entity is infringing in any respect any Intellectual Property rights of the Company or any Company Subsidiary with respect to the Company Software.
(e) Section 3.17(e)(i4.17(e)(1) of the Company Disclosure Letter contains a true Schedule lists and complete list separately identifies all agreements in effect as of all licenses and other Contracts the date of this Agreement pursuant to which the Company or any Company Subsidiary is has been granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available to market Third Party Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii4.17(e)(2) of the Company Disclosure Letter contains a true Schedule lists and complete list, separately identifies all agreements in effect as of the date of this Agreement, of (A) all agreements Agreement pursuant to which the Company or any of its Subsidiaries Company Subsidiary has provided source code of any granted marketing rights in the Company Software Product or any material part thereof to a third party and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source codeparties.
(f) All Company Owned Intellectual Property consisting of patents, patent applications, trademark registrations, trademark applications and copyright registrations have been duly registered and/or filed, as applicable, with or issued by each applicable Governmental Entity in each jurisdiction in which the Company or any Company Subsidiary has sought to register such rights, all necessary affidavits of continuing use have been filed, and all necessary maintenance fees have been paid to continue all such rights in effect. The Company and its Subsidiaries each Company Subsidiary have taken reasonable steps to protect their rights in the Company IP complied with all applicable notice and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoingmarking requirements for such Patents, the Company Trademarks and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential Copyrights.
(including source code with respect to Company Software Productsg) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of Between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary has received any notice of its Subsidiaries has entered into any agreement which confers upon any Person possible infringement or other than violation by the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP Subsidiary or Intellectual Property Rights developed in connection with such agreements any of its or their products or services. To the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directorsCompany's knowledge, officersbetween January 1, consultants or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries 1999 and the Company has provided true and complete copies date of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letterthis Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise the businesses of rights by the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, person in any Company IP or Company Software ProductIntellectual Property.
(h) Section 3.17(h) The execution and delivery of this Agreement do not, and the consummation of the Transactions will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time or both) under, or give rise to any Lien, right, license, lease or similar agreement relating to, any Company Disclosure Letter contains Intellectual Property or any Company Software, or any right of termination, cancellation or acceleration of any Company Intellectual Property right or obligation set forth in any agreement to which the Company or any Company Subsidiary is a true and complete list party, cause the loss or encumbrance of all any Company Intellectual Property or material benefit related thereto, result in the creation of any Lien in or upon any Company Intellectual Property or right, or otherwise impair the Company's or any Company Subsidiary's ability to use the Company Software Products in the same manner as of the date hereof.
(i) No Company such Software Product (including any Company Software Product is currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modification. Company Subsidiary.
(i) Neither the Company nor any Company Subsidiary has incorporated assigned, sold or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution transferred ownership of any Company Software Product on the disclosurematerial Patent, licensing Trademark or distribution of any source code for any portion of such Company Software ProductCopyright since December 31, 2001.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).
(k) Except as listed in Section 3.17(k) and each of the Company Disclosure LetterSubsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, neither including complying with appropriate marking/notice requirements and to the knowledge of the Company nor no such rights, including any of its Subsidiaries has transferred ownership ofright to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or granted any exclusive license with respect to, any are reasonably expected to be lost through failure to act by the Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or any Company Software ProductSubsidiary. Neither the Company nor any Company Subsidiary is has agreed to waive any rights in Company Intellectual Property except pursuant to customary right to use granting provisions of licenses to Customer Software.
(k) Section 4.17(k) of the Company Disclosure Schedule sets forth a complete and accurate list of all material actions that are required to be taken by the Company or has ever been a member any Company Subsidiary within 180 days of the date of this Agreement with respect to any of the Company Intellectual Property.
(l) The Company and each Company Subsidiary have at all times since January 1, 2001, maintained in connection with the conduct of the business of the Company and the Company Subsidiaries including its and their activities on or promoter related to the World Wide Web (the WEB) and the Internet, one or more written privacy statements or policies governing the collection, maintenance, and use of data and information collected from users of Web sites owned, operated, or maintained by, on behalf of, or a contributor to, any industry standards body or similar organization that could compel for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such Subsidiary privacy statements or policies have at all relevant times been conspicuously made available to grant users of Company Web Sites. Such statements or offer to any other Person any license or right to such Company IPpolicies, along with the collection, maintenance, and use of user data and information and transfer thereof, including in connection with the Transactions, comply and will comply in all material respects with all applicable Law, including the rules and regulations promulgated by the U.S. Federal Trade Commission.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date For purposes of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.following terms shall have the definitions set forth below:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sapphire Expansion CORP), Merger Agreement (Retek Inc)
Intellectual Property; Computer Software. (a) The Company and its Subsidiaries own or otherwise hold the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or as formerly conducted by the Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(iSection 4.17(a)(i) of the Company Disclosure LetterSchedule sets forth (i) a complete and accurate list as of February 28, or 2005 of all Company Owned Intellectual Property and (ii) challenging the scope, ownership, validity, owner of such Company Owned Intellectual Property and any registration thereof or enforceability application therefor. Section 4.17(a)(ii) of the Company IP Disclosure Schedule sets forth a complete and accurate list of Contracts existing as of February 28, 2005 pursuant to which the Company or one of the Company Subsidiaries has obtained rights to the Company Licensed Intellectual Property (other than Contracts the non-disclosure of which therein does not constitute a misrepresentation under Section 4.15(g)). All Company Owned Intellectual Property is owned by the Company or one of the Company Subsidiaries free and its Subsidiaries’ rights under clear of all Liens, other than (A) immaterial Liens that do not limit the Necessary IP Rightsability of the Company or any Company Subsidiary to use, modify, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company or any Company Subsidiary and (B) statutory Liens for Taxes not yet due or payable. Neither the Company nor any Company Subsidiary has entered into any agreements which limit in any respect its or their right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare Derivative Works of its Subsidiaries has infringedand sublicense any Company Owned Intellectual Property, misappropriated without payment or otherwise violated other material obligation, to any Intellectual Property Rights of any Person. As other person.
(b) Section 4.17(b) of the date Company Disclosure Schedule contains a complete and accurate list of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP all Software owned by the Company and its Subsidiaries or by any licensee Company Subsidiary as of February 28, 2005 (the “Owned Software”) that is material, which list specifies which of the Company or any of its Subsidiaries, including by Company Subsidiary is the sale, marketing, distribution owner thereof. The Company or provision one of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, has title to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IPOwned Software, free and clear of all Liens, including claims or rights of employees, agents, consultants, contractors, partners, inventors, customers, licensees or other parties involved in the development, creation, marketing, maintenance, enhancement or licensing of such computer software, other than (A) immaterial Liens that do not limit the ability of the Company or any EncumbrancesCompany Subsidiary to use, except for Permitted Encumbrancesmodify, (ii) no Person, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, Subsidiary and (iiiB) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license statutory Liens for Taxes not yet due or transfer of the Necessary IP Rights, the Company IP or the Company Software Productspayable.
(dc) Section 3.17(d)(i4.17(c) of the Company Disclosure Letter Schedule contains a true complete and complete accurate list of (i) all Registered IPOpen Source Software and (ii) all other Licensed Software that is material as identified by the license or other agreement by which such right to use has been obtained and the duration or term thereof. The Company and its Subsidiaries have taken all actions necessary any Company Subsidiary utilizing such Licensed Software has the rights and licenses to maintain and protect the Registered IPLicensed Software as set forth in the respective license, including payment of applicable maintenance fees, filing of applicable statements of use, timely response lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any office actions and disclosure of all required informationCompany Subsidiary, and all assignments (the Company and licenses where required) each of the Registered IP have been duly recorded Company Subsidiaries are in compliance in all material respects with the appropriate Governmental Authoritiesall applicable provisions of such agreements. None of the Registered IP Licensed Software constitutes a component of, has been adjudged invalid included, incorporated or unenforceable in whole embedded into or made a part and all Registered IP is valid and enforceable. The Company has no knowledge either of of, any prior art references that have not been properly disclosed Owned Software or any prior public usesother Licensed Software. Neither the Company nor any Company Subsidiary has published or disclosed any Licensed Software or other Third Party Software to any other party except in accordance with and as permitted by any license, saleslease or similar agreement relating to the Licensed Software or other Third Party Software, offers for sale in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or disclosures that would reasonably be expected other similar payments in respect of such distribution. No party to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which whom the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, andSubsidiary has disclosed Licensed Software has, to the knowledge of Company, breached its obligation of confidentiality in any material respect. To the knowledge of the Company, no (i) Open Source Software that is embedded in or bundled, shipped or distributed with any Customer Software nor (ii) any other Open Source Software (other than immaterial Open Source Software) is used in a manner that requires the contribution of any portion of any Customer Software to any person, including into the open source Software community.
(d) The Owned Software, Licensed Software and commercially available over-the-counter “shrink-wrap” Software constitute all Software used in the businesses of the Company and the Company Subsidiaries as of February 28, 2005 (collectively, the “Company Software”). Section 4.17(d) of the Company Disclosure Schedule sets forth a list of all contract programmers, independent contractors, nonemployee agents and persons or other entities (other than employees) who on or prior to February 28, 2005 have performed computer programming services for the Company or any Company Subsidiary (it being understood that if any entity was engaged, the entity rather than the individual persons working for such proceedings areentity are to be listed) and identifies all contracts and agreements pursuant to which such services were performed. Each such listed entity or person has executed an agreement providing that the Company or a Company Subsidiary, as the case may be, has the exclusive ownership rights to all Intellectual Property and other work product conceived, developed or produced in connection with the programming services provided by such persons. Between January 1, 1999 and February 28, 2005, none of the date former or current members of this Agreement, threatened management or contemplated by any Governmental Agency key personnel of the Company or any Company Subsidiary, including all former and current employees, agents, consultants and contractors who have contributed to or participated in the conception and development of Company Owned Intellectual Property has asserted any claim against the Company or any Company Subsidiary in connection with the involvement of such persons in the conception and development of any Company Owned Intellectual Property, and to the knowledge of the Company no such claim has been threatened. To the knowledge of the Company, no other Personperson or entity is infringing in any respect any Intellectual Property rights of the Company or any Company Subsidiary with respect to the Company Software.
(e) Section 3.17(e)(i4.17(e)(1) of the Company Disclosure Letter contains a true Schedule lists and complete list separately identifies all agreements in effect as of all licenses and other Contracts February 28, 2005 pursuant to which the Company or any Company Subsidiary is has been granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available to market Third Party Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii4.17(e)(2) of the Company Disclosure Letter contains a true Schedule lists and complete list, separately identifies all agreements in effect as of the date of this AgreementFebruary 28, of (A) all agreements 2005 pursuant to which the Company or any of its Subsidiaries Company Subsidiary has provided source code of any granted marketing rights in the Company Software Product to third parties.
(f) All Company Owned Intellectual Property consisting of patents, patent applications, trademark registrations, trademark applications and copyright registrations have been duly registered and/or filed, as applicable, with or any material part thereof to a third party and (B) all third parties to whom issued by each applicable Governmental Entity in each jurisdiction in which the Company or any Company Subsidiary has sought to register such rights, all necessary affidavits of its Subsidiaries has granted a contingent right continuing use have been filed, and all necessary maintenance fees have been paid to receive the source code of any continue all such rights in effect. The Company Software Product or any material part thereofand each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(iiTrademarks and Copyrights.
(g) of the Company Disclosure LetterBetween January 1, 1999 and February 28, 2005, neither the Company nor any Company Subsidiary has received any notice of any possible infringement or other violation by the Company or any Company Subsidiary or any of its Subsidiaries or their products or services. To the Company’s knowledge, between January 1, 1999 and February 28, 2005, neither the Company nor any Company Subsidiary is violating or has disclosed or delivered to any escrow agent or any other Person any violated, and the conduct of the source code relating to businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use person in any such source codeIntellectual Property.
(fh) The execution and delivery of this Agreement do not, and the consummation of the Transactions will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time or both) under, or give rise to any Lien, right, license, lease or similar agreement relating to, any Company Intellectual Property or any Company Software, or any right of termination, cancellation or acceleration of any Company Intellectual Property right or obligation set forth in any agreement to which the Company or any Company Subsidiary is a party, cause the loss or encumbrance of any Company Intellectual Property or material benefit related thereto, result in the creation of any Lien in or upon any Company Intellectual Property or right, or otherwise impair the Company’s or any Company Subsidiary’s ability to use the Company Software in the same manner as such Software is currently used by the Company or any Company Subsidiary.
(i) Neither the Company nor any Company Subsidiary has assigned, sold or otherwise transferred ownership of any material Patent, Trademark or Copyright since December 31, 2001.
(j) The Company and its each of the Company Subsidiaries have taken reasonable steps to protect their rights in the respect of Company IP Owned Intellectual Property, including complying with appropriate marking/notice requirements and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants or employees) who have created on behalf knowledge of the Company no such rights, including any portion of, or otherwise who would have any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights are reasonably expected to the Company and its Subsidiaries and the Company has provided true and complete copies of such assignments be lost through failure to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights act by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 3.17(h) of the Company Disclosure Letter contains a true and complete list of all Company Software Products as of the date hereof.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modificationSubsidiary. Neither the Company nor any Company Subsidiary has incorporated or otherwise used Publicly Available Software agreed to waive any rights in a manner that would require, or condition the Company Intellectual Property except pursuant to customary right to use or distribution granting provisions of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product.
(j) The Company Software Products do not contain any computer code designed licenses to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”)Customer Software.
(k) Except as listed in Section 3.17(k4.17(k) of the Company Disclosure Letter, neither Schedule sets forth a complete and accurate list of all material actions that are required to be taken by the Company nor or any Company Subsidiary within 180 days of February 28, 2005 with respect to any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any the Company IP to any other PersonIntellectual Property.
(l) No fundingThe Company and each Company Subsidiary have at all times since January 1, facilities 2001, maintained in connection with the conduct of the business of the Company and the Company Subsidiaries including its and their activities on or personnel related to the World Wide Web (the “Web”) and the Internet, one or more written privacy statements or policies governing the collection, maintenance, and use of any Governmental Authority were useddata and information collected from users of Web sites owned, directly operated, or indirectlymaintained by, to develop on behalf of, or create, in whole or in part, any for the benefit of the Company IP or any Company Software ProductSubsidiary (“Company Web Sites”) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Neither Such statements or policies, along with the Company nor any Subsidiary is or has ever been a member or promoter ofcollection, or a contributor tomaintenance, any industry standards body or similar organization that could compel and use of user data and information and transfer thereof, including in connection with the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IPTransactions, comply and will comply in all material respects with all applicable Law, including the rules and regulations promulgated by the U.S. Federal Trade Commission.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date For purposes of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.following terms shall have the definitions set forth below:
Appears in 2 contracts
Samples: Merger Agreement (Retek Inc), Merger Agreement (Ruby Merger Corp.)
Intellectual Property; Computer Software. (a) The Company and its Subsidiaries own or otherwise hold the right to use (i) all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or conducted, and (ii) all Intellectual Property Rights to the Company’s knowledge in existence, and necessary for the conduct of the business of the Company and its Subsidiaries as formerly currently proposed to be conducted by the Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not (i) alter, restrict, encumber, impair or extinguish any Necessary IP Rights, or (ii) result in the creation of any Lien with respect to any of the Intellectual Property Rights owned or otherwise held by the Company or any of its Subsidiaries.
(b) There are no Proceedings pending legal disputes or claims, threatened or pending, (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(i) of the Company Disclosure Letter, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP or of the Company and its Subsidiaries’ rights under the Necessary IP Rights. Neither None of the Company nor any of or its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. As of the date of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee of the Company or any of its Subsidiaries, including by the sale, marketing, distribution or provision of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IP, free and clear of any Encumbrances, except for Permitted EncumbrancesLien, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for other products or services utilizing the Company distributors, value-added resellers and solution partners authorized by the terms of Company licensesIP, and (iii) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 3.17(d)(i5.20(d)(i) of the Company Disclosure Letter Schedule contains a true and complete list of all Registered IP. The Company and its Subsidiaries have taken all actions necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to any office actions and disclosure of all any required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate Governmental Authoritiesgovernmental authorities. Section 5.20(d)(ii) of the Company Disclosure Schedule includes a true and complete list of all material actions that must be taken within 180 days of the date hereof with respect to any of the Registered IP. The Company and each of its Subsidiaries have complied with all applicable notice and marking requirements for the Registered IP. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and all Registered IP is valid and enforceable. The Company has no knowledge either of any prior art references that have not been properly disclosed or any prior public uses, sales, offers for sale or disclosures that would reasonably be expected to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, and, to the knowledge of the Company, no such proceedings are, as of the date of this Agreement, threatened or contemplated by any Governmental Agency or any other Personall Registered IP is valid and enforceable.
(e) Section 3.17(e)(i5.20(e)(i) of the Company Disclosure Letter Schedule contains (A) a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available Software) (x) embedded or sold with, incorporated into or distributed with used in the development of any Company Software Product, or (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses clause (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and ), (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii5.20(e)(ii) of the Company Disclosure Letter Schedule contains a true and complete list, as of the date of this Agreement, list of (A) all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof to a third party party, and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code.
(f) The Company and its Subsidiaries have taken all commercially reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements agreements, or other legally binding obligations, requiring such Person to maintain the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants officers or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries and the Company has provided true and complete copies either in writing or through operation of such assignments to Parentlaw. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither Neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 3.17(h5.20(h) of the Company Disclosure Letter Schedule contains a true and complete list of all Company Software Products as of the date hereofProducts.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries Company or its authorized users, or any other associated software, firmware, hardware, computer system or network (including without limitation what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).
(k) Except as listed in Section 3.17(k) of the Company Disclosure Letter, neither Neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any currently effective exclusive license with respect to, any Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or IP, including any Company Software Product. Neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date of this Agreement, no Person person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has have implemented reasonable backup and disaster recovery technology processesprocesses consistent with industry practices.
Appears in 2 contracts
Samples: Merger Agreement (Stellent Inc), Merger Agreement (Oracle Corp)
Intellectual Property; Computer Software. (a) The Schedule 4.21 (a) of the Company Disclosure Schedule sets forth a complete and its Subsidiaries own correct list and summary description of all patents, material unpatented inventions set forth in or otherwise hold the right described in writing, trademarks, tradenames, service marks, service names, brand names and copyrights, registrations thereof and applications therefore, applicable to use all Intellectual Property Rights necessary for the conduct of or used in the business of the Company, together with a complete list of all licenses granted by or to the Company with respect to any of the above. All such patents, material unpatented inventions, trademarks, tradenames, service marks, service names, brand names and its Subsidiaries as copyrights are owned by the Company, free and clear of all liens, claims, security interests and encumbrances of any nature whatsoever. The Company is not currently conducted in receipt of any notice of any violation or as formerly conducted infringement of, and the Company is not knowingly violating or infringing, the rights of others in any patent, unpatented invention, trademark, tradename, service mark, copyright, trade secxxx, know-how, design, process or other intangible asset.
(i) Schedule 4.21(b)(i) of the Company Disclosure Schedule contains a complete and accurate list of all computer software owned by the Company or any (other than "off-the-shelf" software that has not been customized for its use) (the "Owned Software"). Except as set forth on Schedule 4.21(b)(i) of its Subsidiaries the Company Disclosure Schedule, the Company has exclusive title to the Owned Software, free and to sublicense any or clear of all such rights to third partiesclaims, including claims or rights of employees, agents, consultants, customers, licensees or other parties involved in the right to grant further sublicenses to customers with respect to the saledevelopment, distribution creation, documentation, marketing, maintenance, enhancement or licensing of the Company’s Software Products (the “Necessary IP Rights”)such computer software. The consummation of Owned Software is not dependent on any Licensed Software (as defined in subsection (ii) below) in order to operate fully in the transactions contemplated by this Agreement will not alter, restrict, encumber, impair manner in which it is intended. No Owned Software has been published or extinguish any Necessary IP Rights.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or knowingly disclosed to any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or servicesparties, except as set forth on Section3.17(b)(iSchedule 4.21(b)(i)of the Company Disclosure Schedule, and except pursuant to contracts requiring such other parties to keep the Owned Software confidential. To the knowledge of the Company and Priddy, no such other partx xxx breached any obligation of confidentiality.
(ii) Schedule 4.21(b)(ii) of the Company Disclosure LetterSchedule contains a complete and accurate list of all software under which the Company is a licensee, lessee or otherwise has obtained the right to use software and the Company pays a royalty for the use of such software (iithe "Licensed Software"). Schedule 4.21(b)(ii) challenging the scope, ownership, validity, or enforceability of the Company IP Disclosure Schedule also sets forth a list of all license fees, rents, royalties or of other charges that the Company is required or obligated to pay with respect to Licensed Software. The Company has the right and its Subsidiaries’ rights under the Necessary IP Rights. Neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. As of the date of this Agreement, no claims license to the effect that the use, reproductionsublicense, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company modify and its Subsidiaries or by any licensee of the Company or any of its Subsidiaries, including by the sale, marketing, distribution or provision of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IPcopy Licensed Software, free and clear of any Encumbranceslimitations or encumbrances, except for Permitted Encumbrances, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, and (iii) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 3.17(d)(ias may be set forth in Schedule 4.21(b)(ii) of the Company Disclosure Letter contains a true and complete list of all Registered IPSchedule. The Company and its Subsidiaries have taken is in material compliance with all actions necessary provisions of each license, lease or other similar agreement pursuant to maintain and protect which it has rights to use the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to any office actions and disclosure of all required information, and all assignments (and licenses where requiredLicensed Software. Except as disclosed on Schedule 4.21(b)(ii) of the Registered IP have been duly recorded with the appropriate Governmental Authorities. None Company Disclosure Schedule, none of the Registered IP Licensed Software has been adjudged invalid incorporated into or unenforceable in whole made a part of any Owned Software or part and all Registered IP is valid and enforceableany other Licensed Software. The Company has no knowledge either of not published or knowingly disclosed any prior art references that have not been properly disclosed or Licensed Software to any prior public usesother party except, sales, offers for sale or disclosures that would reasonably be expected to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings case of Licensed Software which the Company leases or markets to others, in accordance with and as permitted by any of its Subsidiaries is awarelicense, including interference, re-examination, reissue, opposition, nullity, lease or cancellation proceedings, pending that relate similar agreement relating to any the Licensed Software and except pursuant to contracts requiring such other parties to keep the Licensed Software confidential. To the knowledge of the Registered IP that Company and Priddy, no party to whom txx Xxxpany has disclosed Licensed Software has breached such obligation of confidentiality.
(iii) The Owned Software and Licensed Software constitute all material software used in the respective businesses of the Company (collectively, the "Company Software"). Schedule 4.21(b)(iii) of the Company Disclosure Schedule sets forth a list of all contract programmers, independent contractors, nonemployee agents and persons or other entities (other than employees) who have performed computer programming services for the Company at any time since January 1, 1993 and identifies all contracts and agreements pursuant to which such services were performed. The transactions contemplated herein will not cause a breach or default under any licensee, leases or similar agreements relating to the Company Software or impair the ability of Parent and the Company to use the Company Software subsequent to the date hereof in the same manner as the Company Software is owned currently used by the Company. The Company is not knowingly infringing any intellectual property rights of any other person or a Subsidiary, other than review of pending patent and trademark applicationsentity with respect to the Company Software, and, to the knowledge of the CompanyCompany and Priddy, no such proceedings are, as of the date of this Agreement, threatened other person or contemplated by xxxxxy is infringing any Governmental Agency or any other Person.
(e) Section 3.17(e)(i) intellectual property rights of the Company Disclosure Letter contains a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii) of the Company Disclosure Letter contains a true and complete list, as of the date of this Agreement, of (A) all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof to a third party and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source codeSoftware.
(f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries and the Company has provided true and complete copies of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 3.17(h) of the Company Disclosure Letter contains a true and complete list of all Company Software Products as of the date hereof.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).
(k) Except as listed in Section 3.17(k) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or any Company Software Product. Neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.
Appears in 1 contract
Intellectual Property; Computer Software. (a) The Company Schedule 4.19 sets forth (i) a complete and its Subsidiaries own correct list of each patent and patent application and each copyright, copyright application, trademark, trademark application (in any such case, whether registered or otherwise hold to be registered in the right to use all Intellectual Property Rights necessary for United States of America or elsewhere), process, invention, trade secret, trade name, computer program, formula and customer list (collectively, the conduct "Intangible Personal Property") of the business Acquired Company, and (ii) a complete and correct list of all material licenses or similar agreements or arrangements ("Licenses") to which the Acquired Company and its Subsidiaries is a party either as currently conducted licensee or as formerly conducted by the Company or any licensor for each such item of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP RightsIntangible Personal Property.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(i) of the Company Disclosure Letter, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP or of the Company and its Subsidiaries’ rights under the Necessary IP Rights. Neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. As of the date of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee of the Company or any of its Subsidiaries, including by the sale, marketing, distribution or provision of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IP, free and clear of any Encumbrances, except for Permitted Encumbrances, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, and (iii) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 3.17(d)(i) of the Company Disclosure Letter contains a true and complete list of all Registered IP. The Company and its Subsidiaries have taken all actions necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to any office actions and disclosure of all required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate Governmental Authorities. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and all Registered IP is valid and enforceable. The Company has no knowledge either of any prior art references that have not been properly disclosed or any prior public uses, sales, offers for sale or disclosures that would reasonably be expected to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, and, to the knowledge of the Company, no such proceedings are, as of the date of this Agreement, threatened or contemplated by any Governmental Agency or any other Person.
(e) Section 3.17(e)(i) of the Company Disclosure Letter contains a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii) of the Company Disclosure Letter contains a true and complete list, as of the date of this Agreement, of (A) all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof to a third party and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii) Schedule 4.19 to the best of the Acquired Shareholder's knowledge:
(i) There are no pending actions or other judicial or adversary proceedings involving the Acquired Company Disclosure Letterconcerning any item of Intangible Personal Property, neither the Company nor and, to Acquired Company's knowledge, no such action or proceeding is threatened and no claim or other demand has been made or threatened by any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code person relating to any item of Intangible Personal Property;
(ii) The Acquired Company Software Producthas the right and authority to use each item of Intangible Personal Property in connection with the conduct of its businesses in the manner presently conducted and to convey such right and authority, and such use does not conflict with, infringe upon or violate any patent, trademark or registration of any other person or entity;
(iii) There are no other Person has the right, contingent or otherwiseoutstanding or, to obtain access to the Acquired Company's knowledge, threatened disputes or use any such source code.
(f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license disagreements with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.Licenses; and
(giv) The conduct by the Acquired Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries and the Company has provided true and complete copies of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial business does not conflict with the valid patents, trademarks, trade secrets or otherwise) to any third party with respect to any exercise trade names of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Productothers.
(h) Section 3.17(h) of the Company Disclosure Letter contains a true and complete list of all Company Software Products as of the date hereof.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).
(k) Except as listed in Section 3.17(k) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or any Company Software Product. Neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.
Appears in 1 contract
Intellectual Property; Computer Software. (a) The Company and its Subsidiaries own or otherwise hold the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or as formerly conducted by the Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(iSection 4.17(a)(i) of the Company Disclosure Letter, or Schedule sets forth (i) a complete and accurate list as of the date hereof of all Company Owned Intellectual Property and (ii) challenging the scope, ownership, validity, owner of such Company Owned Intellectual Property and any registration thereof or enforceability application therefor. Section 4.17(a)(ii) of the Company IP Disclosure Schedule sets forth a complete and accurate list of Contracts existing as of the date hereof pursuant to which the Company or one of the Company Subsidiaries has obtained rights to the Company Licensed Intellectual Property (other than Contracts the non-disclosure of which therein does not constitute a misrepresentation under Section 4.15(g)). All Company Owned Intellectual Property is owned by the Company or one of the Company Subsidiaries free and its Subsidiaries’ rights under clear of all Liens, other than (A) immaterial Liens that do not limit the Necessary IP Rightsability of the Company or any Company Subsidiary to use, modify, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company or any Company Subsidiary and (B) statutory Liens for Taxes not yet due or payable. Neither the Company nor any Company Subsidiary has entered into any agreements which limit in any respect its or their right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare Derivative Works of its Subsidiaries has infringedand sublicense any Company Owned Intellectual Property, misappropriated without payment or otherwise violated other material obligation, to any Intellectual Property Rights other person.
(b) Section 4.17(b) of the Company Disclosure Schedule contains a complete and accurate list of all Software owned by the Company or any Person. As Company Subsidiary as of the date of this AgreementAgreement (the “Owned Software”) that is material, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee which list specifies which of the Company or any of its Subsidiaries, including by Company Subsidiary is the sale, marketing, distribution owner thereof. The Company or provision one of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, has title to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IPOwned Software, free and clear of all Liens, including claims or rights of employees, agents, consultants, contractors, partners, inventors, customers, licensees or other parties involved in the development, creation, marketing, maintenance, enhancement or licensing of such computer software, other than (A) immaterial Liens that do not limit the ability of the Company or any EncumbrancesCompany Subsidiary to use, except for Permitted Encumbrancesmodify, (ii) no Person, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, Subsidiary and (iiiB) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license statutory Liens for Taxes not yet due or transfer of the Necessary IP Rights, the Company IP or the Company Software Productspayable.
(dc) Section 3.17(d)(i4.17(c) of the Company Disclosure Letter Schedule contains a true complete and complete accurate list of (i) all Registered IPOpen Source Software and (ii) all other Licensed Software that is material as identified by the license or other agreement by which such right to use has been obtained and the duration or term thereof. The Company and its Subsidiaries have taken all actions necessary any Company Subsidiary utilizing such Licensed Software has the rights and licenses to maintain and protect the Registered IPLicensed Software as set forth in the respective license, including payment of applicable maintenance fees, filing of applicable statements of use, timely response lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any office actions and disclosure of all required informationCompany Subsidiary, and all assignments (the Company and licenses where required) each of the Registered IP have been duly recorded Company Subsidiaries are in compliance in all material respects with the appropriate Governmental Authoritiesall applicable provisions of such agreements. None of the Registered IP Licensed Software constitutes a component of, has been adjudged invalid included, incorporated or unenforceable in whole embedded into or made a part and all Registered IP is valid and enforceable. The Company has no knowledge either of of, any prior art references that have not been properly disclosed Owned Software or any prior public usesother Licensed Software. Neither the Company nor any Company Subsidiary has published or disclosed any Licensed Software or other Third Party Software to any other party except in accordance with and as permitted by any license, saleslease or similar agreement relating to the Licensed Software or other Third Party Software, offers for sale in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or disclosures that would reasonably be expected other similar payments in respect of such distribution. No party to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which whom the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, andSubsidiary has disclosed Licensed Software has, to the knowledge of Company, breached its obligation of confidentiality in any material respect. To the knowledge of the Company, no such proceedings are(i) Open Source Software that is embedded in or bundled, shipped or distributed with any Customer Software nor (ii) any other Open Source Software (other than immaterial Open Source Software) is used in a manner that requires the contribution of any portion of any Customer Software to any person, including into the open source Software community.
(d) The Owned Software, Licensed Software and commercially available over-the-counter “shrink-wrap” Software constitute all Software used in the businesses of the Company and the Company Subsidiaries as of the date of this Agreement (collectively, the “Company Software”). Section 4.17(d) of the Company Disclosure Schedule sets forth a list of all contract programmers, independent contractors, nonemployee agents and persons or other entities (other than employees) who on or prior to the date hereof have performed computer programming services for the Company or any Company Subsidiary (it being understood that if any entity was engaged, the entity rather than the individual persons working for such entity are to be listed) and identifies all contracts and agreements pursuant to which such services were performed. Each such listed entity or person has executed an agreement providing that the Company or a Company Subsidiary, as the case may be, has the exclusive ownership rights to all Intellectual Property and other work product conceived, developed or produced in connection with the programming services provided by such persons. Between January 1, 1999 and the date of this Agreement, threatened none of the former or contemplated by any Governmental Agency current members of management or key personnel of the Company or any Company Subsidiary, including all former and current employees, agents, consultants and contractors who have contributed to or participated in the conception and development of Company Owned Intellectual Property has asserted any claim against the Company or any Company Subsidiary in connection with the involvement of such persons in the conception and development of any Company Owned Intellectual Property, and to the knowledge of the Company no such claim has been threatened. To the knowledge of the Company, no other Personperson or entity is infringing in any respect any Intellectual Property rights of the Company or any Company Subsidiary with respect to the Company Software.
(e) Section 3.17(e)(i4.17(e)(1) of the Company Disclosure Letter contains a true Schedule lists and complete list separately identifies all agreements in effect as of all licenses and other Contracts the date of this Agreement pursuant to which the Company or any Company Subsidiary is has been granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available to market Third Party Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii4.17(e)(2) of the Company Disclosure Letter contains a true Schedule lists and complete list, separately identifies all agreements in effect as of the date of this Agreement, of (A) all agreements Agreement pursuant to which the Company or any of its Subsidiaries Company Subsidiary has provided source code of any granted marketing rights in the Company Software Product or any material part thereof to a third party and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source codeparties.
(f) All Company Owned Intellectual Property consisting of patents, patent applications, trademark registrations, trademark applications and copyright registrations have been duly registered and/or filed, as applicable, with or issued by each applicable Governmental Entity in each jurisdiction in which the Company or any Company Subsidiary has sought to register such rights, all necessary affidavits of continuing use have been filed, and all necessary maintenance fees have been paid to continue all such rights in effect. The Company and its Subsidiaries each Company Subsidiary have taken reasonable steps to protect their rights in the Company IP complied with all applicable notice and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoingmarking requirements for such Patents, the Company Trademarks and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential Copyrights.
(including source code with respect to Company Software Productsg) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of Between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary has received any notice of its Subsidiaries has entered into any agreement which confers upon any Person possible infringement or other than violation by the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP Subsidiary or Intellectual Property Rights developed in connection with such agreements any of its or their products or services. To the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directorsCompany’s knowledge, officersbetween January 1, consultants or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries 1999 and the Company has provided true and complete copies date of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letterthis Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise the businesses of rights by the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, person in any Company IP or Company Software ProductIntellectual Property.
(h) Section 3.17(h) The execution and delivery of this Agreement do not, and the consummation of the Transactions will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time or both) under, or give rise to any Lien, right, license, lease or similar agreement relating to, any Company Disclosure Letter contains Intellectual Property or any Company Software, or any right of termination, cancellation or acceleration of any Company Intellectual Property right or obligation set forth in any agreement to which the Company or any Company Subsidiary is a true and complete list party, cause the loss or encumbrance of all any Company Intellectual Property or material benefit related thereto, result in the creation of any Lien in or upon any Company Intellectual Property or right, or otherwise impair the Company’s or any Company Subsidiary’s ability to use the Company Software Products in the same manner as of the date hereof.
(i) No Company such Software Product (including any Company Software Product is currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modification. Company Subsidiary.
(i) Neither the Company nor any Company Subsidiary has incorporated assigned, sold or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution transferred ownership of any Company Software Product on the disclosurematerial Patent, licensing Trademark or distribution of any source code for any portion of such Company Software ProductCopyright since December 31, 2001.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).
(k) Except as listed in Section 3.17(k) and each of the Company Disclosure LetterSubsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, neither including complying with appropriate marking/notice requirements and to the knowledge of the Company nor no such rights, including any of its Subsidiaries has transferred ownership ofright to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or granted any exclusive license with respect to, any are reasonably expected to be lost through failure to act by the Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or any Company Software ProductSubsidiary. Neither the Company nor any Company Subsidiary is has agreed to waive any rights in Company Intellectual Property except pursuant to customary right to use granting provisions of licenses to Customer Software.
(k) Section 4.17(k) of the Company Disclosure Schedule sets forth a complete and accurate list of all material actions that are required to be taken by the Company or has ever been a member any Company Subsidiary within 180 days of the date of this Agreement with respect to any of the Company Intellectual Property.
(l) The Company and each Company Subsidiary have at all times since January 1, 2001, maintained in connection with the conduct of the business of the Company and the Company Subsidiaries including its and their activities on or promoter related to the World Wide Web (the “Web”) and the Internet, one or more written privacy statements or policies governing the collection, maintenance, and use of data and information collected from users of Web sites owned, operated, or maintained by, on behalf of, or a contributor to, any industry standards body or similar organization that could compel for the benefit of the Company or any Company Subsidiary (“Company Web Sites”) and such Subsidiary privacy statements or policies have at all relevant times been conspicuously made available to grant users of Company Web Sites. Such statements or offer to any other Person any license or right to such Company IPpolicies, along with the collection, maintenance, and use of user data and information and transfer thereof, including in connection with the Transactions, comply and will comply in all material respects with all applicable Law, including the rules and regulations promulgated by the U.S. Federal Trade Commission.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date For purposes of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.following terms shall have the definitions set forth below:
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
Intellectual Property; Computer Software. (ai) The Section 3.1(j)(i) of the Disclosure Schedule sets forth a complete list of (i) all trademarks, trade names, service marks, service names, and brand names (whether or not any of the same are registered), and all patents and registered copyrights and all applications for the foregoing, if any (setting forth the registration, issue or serial number of the same and a description of the same) that are material and applicable to or used in the businesses of Company or any of its Subsidiaries; (ii) the owner of such intellectual property and any registration thereof or application therefor; and (iii) a complete list of all licenses granted by or to Company or any of its Subsidiaries with respect to any of the above (identified by title, date and parties). Except as set forth in Section 3.1(j)(i) of the Disclosure Schedule, all such trademarks, trade names, service marks, service names, brand names, registered copyrights and patents (other than those licensed to Company or any of its Subsidiaries) are owned by Company or one of its Subsidiaries free and clear of all liens, claims, security interests and encumbrances. Except as set forth in Section 3.1(j)(i) of the Disclosure Schedule, neither Company nor any of its Subsidiaries is currently in receipt of any notice of any violation of, and, to Company's knowledge, neither Company nor any of its Subsidiaries is violating, the rights of others in any trademark, trade name, service xxxx, copyright, patent, trade secret, know-how or other intangible asset.
(ii) Section 3.1(j)(ii) of the Disclosure Schedule contains a complete and accurate list of all Owned Software, which list specifies which of Company and of its Subsidiaries own is the owner thereof. Except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule, Company or one of its Subsidiaries has title to the Owned Software, free and clear of all claims, including claims or rights of employees, agents, consultants, inventors, customers, licensees or other parties involved in the development, creation, marketing, maintenance, enhancement or licensing of such computer software. Except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule and except for commercially available, over-the-counter "shrink-wrap" software, the Owned Software is not dependent on any Licensed Software (as defined in subsection (iii) below) in order to operate fully in the manner in which it is intended. No Owned Software has been delivered, published or disclosed to any other parties, except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule, or except pursuant to contracts requiring such other parties to keep the Owned Software confidential. To the knowledge of Company, no such other party has breached any such obligation of confidentiality.
(iii) Section 3.1(j)(iii) of the Disclosure Schedule contains a complete and accurate list of all software (other than commercially available over-the-counter "shrink-wrap" software) that is material to Company's business and under which Company or any of its Subsidiaries is a licensee, lessee or otherwise hold has obtained the right to use all Intellectual Property Rights necessary for (the conduct "LICENSED SOFTWARE"), and identifies by title, date and party, the license or other agreement by which such right to use has been obtained, and the duration or term thereof. Except as set forth in Section 3.1(j)(iii) of the business of the Disclosure Schedule, Company and any of its Subsidiaries utilizing such Licensed Software has the rights and licenses to the Licensed Software as currently conducted set forth in the respective license, lease or as formerly conducted by similar agreement pursuant to which the Licensed Software is licensed to Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(i) of the Company Disclosure Letter, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP or of the Company and its Subsidiaries’ rights under the Necessary IP Rights. Neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. As of the date of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee of the Company or any of its Subsidiaries, including by the sale, marketing, distribution or provision of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IP, free and clear of any Encumbrances, except for Permitted Encumbrances, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, and (iii) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 3.17(d)(i) of the Company Disclosure Letter contains a true and complete list of all Registered IP. The Company and its Subsidiaries have taken all actions necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to any office actions and disclosure of all required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate Governmental Authorities. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and all Registered IP is valid and enforceable. The Company has no knowledge either of any prior art references that have not been properly disclosed or any prior public uses, sales, offers for sale or disclosures that would reasonably be expected to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, and, to the knowledge of the Company, no such proceedings are, as of the date of this Agreement, threatened or contemplated by any Governmental Agency or any other Person.
(e) Section 3.17(e)(i) of the Company Disclosure Letter contains a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. Except as disclosed in Section 3.1(j)(iii) of the Disclosure Schedule, none of the Licensed Software has been incorporated into or made a part of any Owned Software or any other Licensed Software. Neither Company nor any of its Subsidiaries has published or disclosed any Licensed Software to any other party except, in the case of Licensed Software that Company or one of its Subsidiaries leases or markets to others, in accordance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of as permitted by any license, sublicense lease or other similar agreement relating to third the Licensed Software and except pursuant to contracts requiring such other parties to keep the Licensed Software confidential. No party Intellectual Property Rightsto whom Company or one of its Subsidiaries has disclosed Licensed Software has, nor does to the knowledge of Company, breached such obligation of confidentiality in any material respect. Except as set forth in Section 3.1(j)(iii) of the Disclosure Schedule, the transactions contemplated herein will not cause a material breach or default under any licenses, leases or similar agreements relating to the Company have knowledge Software or impair Company's or any of its Subsidiaries ability to use the Company Software in the same manner as such computer software is currently used by Company or any of its Subsidiaries. The Licensed Software that consists of open source software is not used with respect to any Owned Software in a manner that requires the contribution of any event or occurrence that would reasonably be expected to material portion of such Owned Software into the open source software community.
(iv) The Owned Software and Licensed Software and commercially available over-the-counter "shrink-wrap" software constitute such a breachall software used in the businesses of Company and its Subsidiaries (collectively, violation or default (without or without the lapse of time, giving of notice or both"COMPANY SOFTWARE"). Section 3.17(e)(ii3.1(j)(iv) of the Disclosure Schedule sets forth a list of all contract programmers, independent contractors, nonemployee agents and persons or other entities (other than employees) who have performed, within the last three (3) years, computer programming services for Company Disclosure Letter contains or any of its Subsidiaries and identifies all contracts and agreements pursuant to which such services were performed. All such persons have executed an agreement providing that Company or a true and complete listSubsidiary, as the case may be, has the exclusive ownership rights to all inventions, discoveries, improvements and other work product conceived, developed or produced in connection with the programming services provided by such persons. Except as set forth in Section 3.1(j)(iv) of the date Disclosure Schedule, neither Company nor any of this Agreementits Subsidiaries is infringing any intellectual property rights of any other person or entity with respect to the Company Software, and, to the knowledge of Company, no other person or entity is infringing any intellectual property rights of Company or any of its Subsidiaries with respect to the Company Software.
(Av) Section 3.1(j)(v)(A) of the Disclosure Schedule lists and separately identifies all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof been granted rights to a market software owned by third party parties, and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii3.1(j)(v)(B) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, Schedule lists and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code.
(f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except separately identifies all agreements pursuant to written agreements requiring such Person to maintain which the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries and the Company has provided true and complete copies of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 3.17(h) of the Company Disclosure Letter contains a true and complete list of all Company Software Products as of the date hereof.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Acquired Company or any Subsidiary has been used granted marketing rights in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Productto third parties.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).
(k) Except as listed in Section 3.17(k) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or any Company Software Product. Neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.
Appears in 1 contract
Samples: Merger Agreement (Elekta AB)
Intellectual Property; Computer Software. (a) The Company and its Subsidiaries own or otherwise hold the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or as formerly conducted by the Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(iSection 4.17(a)(i) of the Company Disclosure LetterSchedule sets forth (i) a complete and accurate list as of February 28, or 2005 of all Company Owned Intellectual Property and (ii) challenging the scope, ownership, validity, owner of such Company Owned Intellectual Property and any registration thereof or enforceability application therefor. Section 4.17(a)(ii) of the Company IP Disclosure Schedule sets forth a complete and accurate list of Contracts existing as of February 28, 2005 pursuant to which the Company or one of the Company Subsidiaries has obtained rights to the Company Licensed Intellectual Property (other than Contracts the non-disclosure of which therein does not constitute a misrepresentation under Section 4.15(g)) . All Company Owned Intellectual Property is owned by the Company or one of the Company Subsidiaries free and its Subsidiaries’ rights under clear of all Liens, other than (A) immaterial Liens that do not limit the Necessary IP Rightsability of the Company or any Company Subsidiary to use, modify, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company or any Company Subsidiary and (B) statutory Liens for Taxes not yet due or payable. Neither the Company nor any Company Subsidiary has entered into any agreements which limit in any respect its or their right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare Derivative Works of its Subsidiaries has infringedand sublicense any Company Owned Intellectual Property, misappropriated without payment or otherwise violated other material obligation, to any Intellectual Property Rights of any Person. As other person.
(b) Section 4.17(b) of the date Company Disclosure Schedule contains a complete and accurate list of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP all Software owned by the Company and its Subsidiaries or by any licensee Company Subsidiary as of February 28, 2005 (the “Owned Software”) that is material, which list specifies which of the Company or any of its Subsidiaries, including by Company Subsidiary is the sale, marketing, distribution owner thereof. The Company or provision one of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, has title to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IPOwned Software, free and clear of all Liens, including claims or rights of employees, agents, consultants, contractors, partners, inventors, customers, licensees or other parties involved in the development, creation, marketing, maintenance, enhancement or licensing of such computer software, other than (A) immaterial Liens that do not limit the ability of the Company or any EncumbrancesCompany Subsidiary to use, except for Permitted Encumbrancesmodify, (ii) no Person, extend or enhance the same or require any royalty or other similar payment to be made to any person other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, Subsidiary and (iiiB) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license statutory Liens for Taxes not yet due or transfer of the Necessary IP Rights, the Company IP or the Company Software Productspayable.
(dc) Section 3.17(d)(i4.17(c) of the Company Disclosure Letter Schedule contains a true complete and complete accurate list of (i) all Registered IPOpen Source Software and (ii) all other Licensed Software that is material as identified by the license or other agreement by which such right to use has been obtained and the duration or term thereof. The Company and its Subsidiaries have taken all actions necessary any Company Subsidiary utilizing such Licensed Software has the rights and licenses to maintain and protect the Registered IPLicensed Software as set forth in the respective license, including payment of applicable maintenance fees, filing of applicable statements of use, timely response lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any office actions and disclosure of all required informationCompany Subsidiary, and all assignments (the Company and licenses where required) each of the Registered IP have been duly recorded Company Subsidiaries are in compliance in all material respects with the appropriate Governmental Authoritiesall applicable provisions of such agreements. None of the Registered IP Licensed Software constitutes a component of, has been adjudged invalid included, incorporated or unenforceable in whole embedded into or made a part and all Registered IP is valid and enforceable. The Company has no knowledge either of of, any prior art references that have not been properly disclosed Owned Software or any prior public usesother Licensed Software. Neither the Company nor any Company Subsidiary has published or disclosed any Licensed Software or other Third Party Software to any other party except in accordance with and as permitted by any license, saleslease or similar agreement relating to the Licensed Software or other Third Party Software, offers for sale in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or disclosures that would reasonably be expected other similar payments in respect of such distribution. No party to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which whom the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, andSubsidiary has disclosed Licensed Software has, to the knowledge of Company, breached its obligation of confidentiality in any material respect. To the knowledge of the Company, no (i) Open Source Software that is embedded in or bundled, shipped or distributed with any Customer Software nor (ii) any other Open Source Software (other than immaterial Open Source Software) is used in a manner that requires the contribution of any portion of any Customer Software to any person, including into the open source Software community.
(d) The Owned Software, Licensed Software and commercially available over-the-counter “shrink-wrap” Software constitute all Software used in the businesses of the Company and the Company Subsidiaries as of February 28, 2005 (collectively, the “Company Software”). Section 4.17(d) of the Company Disclosure Schedule sets forth a list of all contract programmers, independent contractors, nonemployee agents and persons or other entities (other than employees) who on or prior to February 28, 2005 have performed computer programming services for the Company or any Company Subsidiary (it being understood that if any entity was engaged, the entity rather than the individual persons working for such proceedings areentity are to be listed) and identifies all contracts and agreements pursuant to which such services were performed. Each such listed entity or person has executed an agreement providing that the Company or a Company Subsidiary, as the case may be, has the exclusive ownership rights to all Intellectual Property and other work product conceived, developed or produced in connection with the programming services provided by such persons. Between January 1, 1999 and February 28, 2005, none of the date former or current members of this Agreement, threatened management or contemplated by any Governmental Agency key personnel of the Company or any Company Subsidiary, including all former and current employees, agents, consultants and contractors who have contributed to or participated in the conception and development of Company Owned Intellectual Property has asserted any claim against the Company or any Company Subsidiary in connection with the involvement of such persons in the conception and development of any Company Owned Intellectual Property, and to the knowledge of the Company no such claim has been threatened. To the knowledge of the Company, no other Personperson or entity is infringing in any respect any Intellectual Property rights of the Company or any Company Subsidiary with respect to the Company Software.
(e) Section 3.17(e)(i4.17(e)(1) of the Company Disclosure Letter contains a true Schedule lists and complete list separately identifies all agreements in effect as of all licenses and other Contracts February 28, 2005 pursuant to which the Company or any Company Subsidiary is has been granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available to market Third Party Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii4.17(e)(2) of the Company Disclosure Letter contains a true Schedule lists and complete list, separately identifies all agreements in effect as of the date of this AgreementFebruary 28, of (A) all agreements 2005 pursuant to which the Company or any of its Subsidiaries Company Subsidiary has provided source code of any granted marketing rights in the Company Software Product to third parties.
(f) All Company Owned Intellectual Property consisting of patents, patent applications, trademark registrations, trademark applications and copyright registrations have been duly registered and/or filed, as applicable, with or any material part thereof to a third party and (B) all third parties to whom issued by each applicable Governmental Entity in each jurisdiction in which the Company or any Company Subsidiary has sought to register such rights, all necessary affidavits of its Subsidiaries has granted a contingent right continuing use have been filed, and all necessary maintenance fees have been paid to receive the source code of any continue all such rights in effect. The Company Software Product or any material part thereofand each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(iiTrademarks and Copyrights.
(g) of the Company Disclosure LetterBetween January 1, 1999 and February 28, 2005, neither the Company nor any Company Subsidiary has received any notice of any possible infringement or other violation by the Company or any Company Subsidiary or any of its Subsidiaries or their products or services. To the Company’s knowledge, between January 1, 1999 and February 28, 2005, neither the Company nor any Company Subsidiary is violating or has disclosed or delivered to any escrow agent or any other Person any violated, and the conduct of the source code relating to businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use person in any such source codeIntellectual Property.
(fh) The execution and delivery of this Agreement do not, and the consummation of the Transactions will not, conflict with, or result in any violation of, or default (with or without notice or lapse of time or both) under, or give rise to any Lien, right, license, lease or similar agreement relating to, any Company Intellectual Property or any Company Software, or any right of termination, cancellation or acceleration of any Company Intellectual Property right or obligation set forth in any agreement to which the Company or any Company Subsidiary is a party, cause the loss or encumbrance of any Company Intellectual Property or material benefit related thereto, result in the creation of any Lien in or upon any Company Intellectual Property or right, or otherwise impair the Company’s or any Company Subsidiary’s ability to use the Company Software in the same manner as such Software is currently used by the Company or any Company Subsidiary.
(i) Neither the Company nor any Company Subsidiary has assigned, sold or otherwise transferred ownership of any material Patent, Trademark or Copyright since December 31, 2001.
(j) The Company and its each of the Company Subsidiaries have taken reasonable steps to protect their rights in the respect of Company IP Owned Intellectual Property, including complying with appropriate marking/notice requirements and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants or employees) who have created on behalf knowledge of the Company no such rights, including any portion of, or otherwise who would have any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights are reasonably expected to the Company and its Subsidiaries and the Company has provided true and complete copies of such assignments be lost through failure to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights act by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 3.17(h) of the Company Disclosure Letter contains a true and complete list of all Company Software Products as of the date hereof.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modificationSubsidiary. Neither the Company nor any Company Subsidiary has incorporated or otherwise used Publicly Available Software agreed to waive any rights in a manner that would require, or condition the Company Intellectual Property except pursuant to customary right to use or distribution granting provisions of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product.
(j) The Company Software Products do not contain any computer code designed licenses to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”)Customer Software.
(k) Except as listed in Section 3.17(k4.17(k) of the Company Disclosure Letter, neither Schedule sets forth a complete and accurate list of all material actions that are required to be taken by the Company nor or any Company Subsidiary within 180 days of February 28, 2005 with respect to any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any the Company IP to any other PersonIntellectual Property.
(l) No fundingThe Company and each Company Subsidiary have at all times since January 1, facilities 2001, maintained in connection with the conduct of the business of the Company and the Company Subsidiaries including its and their activities on or personnel related to the World Wide Web (the “Web”) and the Internet, one or more written privacy statements or policies governing the collection, maintenance, and use of any Governmental Authority were useddata and information collected from users of Web sites owned, directly operated, or indirectlymaintained by, to develop on behalf of, or create, in whole or in part, any for the benefit of the Company IP or any Company Software ProductSubsidiary (“Company Web Sites”) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Neither Such statements or policies, along with the Company nor any Subsidiary is or has ever been a member or promoter ofcollection, or a contributor tomaintenance, any industry standards body or similar organization that could compel and use of user data and information and transfer thereof, including in connection with the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IPTransactions, comply and will comply in all material respects with all applicable Law, including the rules and regulations promulgated by the U.S. Federal Trade Commission.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date For purposes of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.following terms shall have the definitions set forth below:
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
Intellectual Property; Computer Software. (ai) The Section 3.1(j)(i) of the Disclosure Schedule sets forth a complete list of (i) all trademarks, trade names, service marks, service names, and brand names (whether or not any of the same are registered), and all patents and registered copyrights and all applications for the foregoing, if any (setting forth the registration, issue or serial number of the same and a description of the same) that are material and applicable to or used in the businesses of Company or any of its Subsidiaries; (ii) the owner of such intellectual property and any registration thereof or application therefor; and (iii) a complete list of all licenses granted by or to Company or any of its Subsidiaries with respect to any of the above (identified by title, date and parties). Except as set forth in Section 3.1(j)(i) of the Disclosure Schedule, all such trademarks, trade names, service marks, service names, brand names, registered copyrights and patents (other than those licensed to Company or any of its Subsidiaries) are owned by Company or one of its Subsidiaries free and clear of all liens, claims, security interests and encumbrances. Except as set forth in Section 3.1(j)(i) of the Disclosure Schedule, neither Company nor any of its Subsidiaries is currently in receipt of any notice of any violation of, and, to Company’s knowledge, neither Company nor any of its Subsidiaries is violating, the rights of others in any trademark, trade name, service xxxx, copyright, patent, trade secret, know-how or other intangible asset.
(ii) Section 3.1(j)(ii) of the Disclosure Schedule contains a complete and accurate list of all Owned Software, which list specifies which of Company and of its Subsidiaries own is the owner thereof. Except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule, Company or one of its Subsidiaries has title to the Owned Software, free and clear of all claims, including claims or rights of employees, agents, consultants, inventors, customers, licensees or other parties involved in the development, creation, marketing, maintenance, enhancement or licensing of such computer software. Except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule and except for commercially available, over-the-counter “shrink-wrap” software, the Owned Software is not dependent on any Licensed Software (as defined in subsection (iii) below) in order to operate fully in the manner in which it is intended. No Owned Software has been delivered, published or disclosed to any other parties, except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule, or except pursuant to contracts requiring such other parties to keep the Owned Software confidential. To the knowledge of Company, no such other party has breached any such obligation of confidentiality.
(iii) Section 3.1(j)(iii) of the Disclosure Schedule contains a complete and accurate list of all software (other than commercially available over-the-counter “shrink-wrap” software) that is material to Company’s business and under which Company or any of its Subsidiaries is a licensee, lessee or otherwise hold has obtained the right to use all Intellectual Property Rights necessary for (the conduct “Licensed Software”), and identifies by title, date and party, the license or other agreement by which such right to use has been obtained, and the duration or term thereof. Except as set forth in Section 3.1(j)(iii) of the business of the Disclosure Schedule, Company and any of its Subsidiaries utilizing such Licensed Software has the rights and licenses to the Licensed Software as currently conducted set forth in the respective license, lease or as formerly conducted by similar agreement pursuant to which the Licensed Software is licensed to Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not alter, restrict, encumber, impair or extinguish any Necessary IP Rights.
(b) There are no Proceedings pending or threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(i) of the Company Disclosure Letter, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP or of the Company and its Subsidiaries’ rights under the Necessary IP Rights. Neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. As of the date of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee of the Company or any of its Subsidiaries, including by the sale, marketing, distribution or provision of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IP, free and clear of any Encumbrances, except for Permitted Encumbrances, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for Company distributors, value-added resellers and solution partners authorized by the terms of Company licenses, and (iii) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 3.17(d)(i) of the Company Disclosure Letter contains a true and complete list of all Registered IP. The Company and its Subsidiaries have taken all actions necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to any office actions and disclosure of all required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate Governmental Authorities. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and all Registered IP is valid and enforceable. The Company has no knowledge either of any prior art references that have not been properly disclosed or any prior public uses, sales, offers for sale or disclosures that would reasonably be expected to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, and, to the knowledge of the Company, no such proceedings are, as of the date of this Agreement, threatened or contemplated by any Governmental Agency or any other Person.
(e) Section 3.17(e)(i) of the Company Disclosure Letter contains a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available Software) (x) embedded or incorporated into or distributed with any Company Software Product, (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. Except as disclosed in Section 3.1(j)(iii) of the Disclosure Schedule, none of the Licensed Software has been incorporated into or made a part of any Owned Software or any other Licensed Software. Neither Company nor any of its Subsidiaries has published or disclosed any Licensed Software to any other party except, in the case of Licensed Software that Company or one of its Subsidiaries leases or markets to others, in accordance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of as permitted by any license, sublicense lease or other similar agreement relating to third the Licensed Software and except pursuant to contracts requiring such other parties to keep the Licensed Software confidential. No party Intellectual Property Rightsto whom Company or one of its Subsidiaries has disclosed Licensed Software has, nor does to the knowledge of Company, breached such obligation of confidentiality in any material respect. Except as set forth in Section 3.1(j)(iii) of the Disclosure Schedule, the transactions contemplated herein will not cause a material breach or default under any licenses, leases or similar agreements relating to the Company have knowledge Software or impair Company’s or any of its Subsidiaries ability to use the Company Software in the same manner as such computer software is currently used by Company or any of its Subsidiaries. The Licensed Software that consists of open source software is not used with respect to any Owned Software in a manner that requires the contribution of any event or occurrence that would reasonably be expected to material portion of such Owned Software into the open source software community.
(iv) The Owned Software and Licensed Software and commercially available over-the-counter “shrink-wrap” software constitute such a breachall software used in the businesses of Company and its Subsidiaries (collectively, violation or default (without or without the lapse of time, giving of notice or both“Company Software”). Section 3.17(e)(ii3.1(j)(iv) of the Disclosure Schedule sets forth a list of all contract programmers, independent contractors, nonemployee agents and persons or other entities (other than employees) who have performed, within the last three (3) years, computer programming services for Company Disclosure Letter contains or any of its Subsidiaries and identifies all contracts and agreements pursuant to which such services were performed. All such persons have executed an agreement providing that Company or a true and complete listSubsidiary, as the case may be, has the exclusive ownership rights to all inventions, discoveries, improvements and other work product conceived, developed or produced in connection with the programming services provided by such persons. Except as set forth in Section 3.1(j)(iv) of the date Disclosure Schedule, neither Company nor any of this Agreementits Subsidiaries is infringing any intellectual property rights of any other person or entity with respect to the Company Software, and, to the knowledge of Company, no other person or entity is infringing any intellectual property rights of Company or any of its Subsidiaries with respect to the Company Software.
(Av) Section 3.1(j)(v)(A) of the Disclosure Schedule lists and separately identifies all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof been granted rights to a market software owned by third party parties, and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii3.1(j)(v)(B) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, Schedule lists and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code.
(f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except separately identifies all agreements pursuant to written agreements requiring such Person to maintain which the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product valid and enforceable written assignments of any such rights to the Company and its Subsidiaries and the Company has provided true and complete copies of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 3.17(h) of the Company Disclosure Letter contains a true and complete list of all Company Software Products as of the date hereof.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Acquired Company or any Subsidiary has been used granted marketing rights in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Productto third parties.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries or its authorized users, or any other associated software, firmware, hardware, computer system or network (including what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”).
(k) Except as listed in Section 3.17(k) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or any Company Software Product. Neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could compel the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date of this Agreement, no Person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has implemented reasonable backup and disaster recovery technology processes.
Appears in 1 contract
Intellectual Property; Computer Software. (a) The Company and its Subsidiaries own or otherwise hold the right to use all Intellectual Property Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted or as formerly currently proposed to be conducted in a written business or development plan as of the date of this Agreement by the Company or any of its Subsidiaries and to sublicense any or all such rights to third parties, including the right to grant further sublicenses to customers with respect to the sale, distribution or licensing of the Company’s Software Products (the “Necessary IP Rights”). The consummation of the transactions contemplated by this Agreement will not (i) alter, restrict, encumber, impair or extinguish any Necessary IP Rights, or (ii) result in the creation of any Lien with respect to any of the Intellectual Property Rights owned or otherwise held by the Company or any of its Subsidiaries.
(b) There In the five years immediately prior to the date of this Agreement, there have been, and there are currently, no Proceedings legal disputes or claims pending or or, to the Company’s knowledge, threatened (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or any of its Subsidiaries or any of their respective products or services, except as set forth on Section3.17(b)(i) of the Company Disclosure Letter, or (ii) challenging the scope, ownership, validity, or enforceability of the Company IP owned by the Company or any of its Subsidiaries or of the Company and its Subsidiaries’ rights under the Necessary IP Rights. Neither None of the Company nor any of or its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person. As of the date of this Agreement, no claims to the effect that the use, reproduction, modification, manufacture, distribution, licensing, sublicensing, or sale, or any other exercise of rights in any Company IP by the Company and its Subsidiaries or by any licensee of the Company or any of its Subsidiaries, including by the sale, marketing, distribution or provision of the Company Software Products, infringes or will infringe on any intellectual or other proprietary or personal right of any Person have been asserted against the Company or any of its Subsidiaries nor, to the Company’s knowledge, are threatened by any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IP, free and clear of any Encumbrances, except for Permitted EncumbrancesLien, (ii) no Person, other than the Company and its Subsidiaries, possesses any current or contingent rights to license, sell or otherwise distribute the Company Software Products or any portion thereof, except for other products or services utilizing the Company distributors, value-added resellers and solution partners authorized by the terms of Company licensesIP, and (iii) there are no restrictions on the Company and its Subsidiaries with respect to the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 3.17(d)(i4.20(d)(i) of the Company Disclosure Letter Schedule contains a true and complete list list, as of the date of this Agreement, of all Registered IP. The Company and its Subsidiaries have taken all actions reasonably necessary to maintain and protect the Registered IP, including payment of applicable maintenance fees, filing of applicable statements of use, timely response to any office actions and disclosure of all any required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate Governmental Authoritiesgovernmental authorities. Section 4.20(d)(ii) of the Company Disclosure Schedule includes a true and complete list as of the date of this Agreement of all material actions that must be taken within one hundred eighty (180) days of the date hereof with respect to any of the Registered IP. The Company and each of its Subsidiaries have complied with all applicable notice and marking requirements for the Registered IP. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and all Registered IP is valid and enforceable. The Company has no knowledge either of any prior art references that have not been properly disclosed or any prior public uses, sales, offers for sale or disclosures that would reasonably be expected to invalidate the Registered IP or any claim thereof, or of any conduct the result of which would reasonably be expected to render the Registered IP or any claim thereof invalid or unenforceable. The original, first and joint inventors of the subject matter claimed in the patents included in the Registered IP are properly represented in the Registered IP. There are no legal or governmental proceedings of which the Company or any of its Subsidiaries is aware, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings, pending that relate to any of the Registered IP that is owned by the Company or a Subsidiary, other than review of pending patent and trademark applications, and, to the knowledge of the Company, no such proceedings arenone of the Registered IP is invalid or unenforceable.
(e) Section 4.20(e)(i) of the Company Disclosure Schedule contains (A) a true and complete list, as of the date of this Agreement, threatened or contemplated by any Governmental Agency or any other Person.
(e) Section 3.17(e)(i) of the Company Disclosure Letter contains a true and complete list of all licenses and other Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (excluding any Publicly Available Software) (x) embedded or sold with, incorporated into or distributed with used in the development of any Company Software Product, or (y) used by the Company or any of its Subsidiaries in the development or support of any Company Software Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clauses clause (y) and (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms) and ), (B) a summary of the Company’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company on standard terms. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that they have breached, violated or defaulted under, any of the terms or conditions of any license, sublicense or other agreement relating to third party Intellectual Property Rights, nor does the Company have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (without or without the lapse of time, giving of notice or both). Section 3.17(e)(ii4.20(e)(ii) of the Company Disclosure Letter Schedule contains a true and complete list, as of the date of this Agreement, list of (A) all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company Software Product or any material part thereof to a third party party, and (B) all third parties to whom the Company or any of its Subsidiaries has granted a contingent right to receive the source code of any Company Software Product or any material part thereof, whether pursuant to an escrow arrangement or otherwise. Except as set forth on Section 3.17(e)(ii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has disclosed or delivered to any escrow agent or any other Person any of the source code relating to any Company Software Product, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code.
(f) The Company and its Subsidiaries have taken reasonable steps to protect their rights in the Company IP and to protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company and its Subsidiaries have not made any of their trade secrets or other confidential or proprietary information that they intended to maintain as confidential (including source code with respect to Company Software Products) available to any other Person except pursuant to written agreements requiring such Person to maintain the confidentiality of such information or materials. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any agreement which confers upon any Person other than the Company or its Subsidiaries any ownership right or granted an exclusive license with respect to any Company IP or Intellectual Property Rights developed in connection with such agreements or the right to modify Company IP or otherwise create derivative works thereof.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers, consultants officers or employees) who have created on behalf of the Company any portion of, or otherwise who would have any rights in or to, any Company IP or Company Software Product Product, in each case to the extent owned by the Company and its Subsidiaries, valid and enforceable written assignments of any such rights to the Company and its Subsidiaries and the Company has provided delivered true and complete copies of such assignments to Parent. Excluding the licenses and contracts listed in Section 3.17(e)(i) of the Company Disclosure Letter, neither Neither the Company nor any of its Subsidiaries is obligated to provide any consideration (whether financial or otherwise) to any third party with respect to any exercise of rights by the Company or any of its Subsidiaries, or any successor to the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 3.17(h4.20(h) of the Company Disclosure Letter Schedule contains a true and complete list list, as of the date of this Agreement, of all Company Software Products as of the date hereofProducts.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that is, in whole or in part, subject to the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including without limitation any obligation or condition under any “open source” license such as, without limitation, the GNU General Public License, GNU Lesser General Public License, Mozilla Public License or BSD licenses) (collectively, “Publicly Available Software”). All Publicly Available Software used by the Company or any Subsidiary has been used in its entirety and without modification. Neither the Company nor any Subsidiary has incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any portion of such Company Software Product.
(j) The Company Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of such software by or for the Company, its Subsidiaries Company or its authorized users, or any other associated software, firmware, hardware, computer system or network (including without limitation what are sometimes referred to as “viruses”, “worms”, “time bombs” and/or “back doors”), excluding license authentication, license key or license enforcement functionality included by the Company in the Company Software Products and described on Section 4.20(j) of the Company Disclosure Schedule.
(k) Except as listed in Section 3.17(k) of the Company Disclosure Letter, neither Neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company IP to any other Person.
(l) No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP or IP, including any Company Software Product, owned by the Company or any of its Subsidiaries. Neither the Company nor any Subsidiary is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization pursuant to an agreement that could compels, or provides the right to compel in the future, the Company or such Subsidiary to grant or offer to any other Person any license or right to such Company IP.
(m) The IT Assets operate and perform in all material respects in a manner that permits the Company and each of its Subsidiaries to conduct its business as currently conducted and, to the knowledge of the Company, as of the date of this Agreement’s knowledge, no Person person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries has have implemented reasonable backup and disaster recovery technology processesprocesses consistent with industry standard practices.
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