Intellectual Property; Computer Software. (a) Section 4.17(a)(i) of the Company Disclosure Schedule sets forth (i) a complete and accurate list as of the date hereof of all Company Owned Intellectual Property and (ii) the owner of such Company Owned Intellectual Property and any registration thereof or application therefor. Section 4.17(a)(ii) of the Company 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 clear of all Liens, other than (A) immaterial Liens that do not limit the ability 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 and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any 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 Company Subsidiary as of the date of this Agreement (the OWNED SOFTWARE) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereof. The Company or one of the Company Subsidiaries has title to the Owned 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 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. (c) Section 4.17(c) of the Company Disclosure Schedule contains a complete and accurate list of (i) all Open 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 any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary 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 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, none of the former or 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 person 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 4.17(e)(1) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights. (g) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Company's knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property. (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 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 each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary 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 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 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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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) For purposes of this Agreement, the 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) Section 4.17(a)(i) of the Company Disclosure Schedule sets forth (i) a complete and accurate list as of the date hereof February 28, 2005 of all Company Owned Intellectual Property and (ii) the owner of such Company Owned Intellectual Property and any registration thereof or application therefor. Section 4.17(a)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of Contracts existing as of the date hereof 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 clear of all Liens, other than (A) immaterial Liens that do not limit the ability 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 and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any 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 Company Subsidiary as of the date of this Agreement February 28, 2005 (the OWNED SOFTWARE“Owned Software”) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereof. The Company or one of the Company Subsidiaries has title to the Owned 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 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.
(c) Section 4.17(c) of the Company Disclosure Schedule contains a complete and accurate list of (i) all Open 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 any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary 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 the date of this Agreement February 28, 2005 (collectively, the COMPANY SOFTWARE“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 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 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 AgreementFebruary 28, 2005, none of the former or 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 person 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 4.17(e)(1) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement February 28, 2005 pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement February 28, 2005 pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights.
(g) Between January 1, 1999 and the date of this AgreementFebruary 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 or their products or services. To the Company's ’s knowledge, between January 1, 1999 and the date of this AgreementFebruary 28, 2005, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property.
(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 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 ’s or any Company Subsidiary's ’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 each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary 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 any Company Subsidiary within 180 days of the date of this Agreement February 28, 2005 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 related to the World Wide Web (the WEB“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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES“Company Web Sites”) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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) For purposes of this Agreement, the following terms shall have the definitions set forth below:
Appears in 2 contracts
Samples: Merger Agreement (Ruby Merger Corp.), Merger Agreement (Retek Inc)
Intellectual Property; Computer Software. (a) Section 4.17(a)(iThe 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 Disclosure Schedule sets forth (i) a complete and accurate list its Subsidiaries as of the date hereof of all Company Owned Intellectual Property currently conducted, and (ii) the owner of such Company Owned all Intellectual Property Rights to the Company’s knowledge in existence, and any registration thereof or application therefor. Section 4.17(a)(ii) necessary for the conduct of the business of the Company Disclosure Schedule sets forth a complete and accurate list of Contracts existing its Subsidiaries as of the date hereof pursuant currently proposed 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 be conducted by the Company or one any of its Subsidiaries (the “Necessary IP Rights”). The consummation of the Company Subsidiaries free and clear 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 all Liens, other than (A) immaterial Liens that do not limit any Lien with respect to any of the ability of Intellectual Property Rights owned or otherwise held by 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 of its or their right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare Derivative Works of and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any other personSubsidiaries.
(b) There are no 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, 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. None of the Company or its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of 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 Lien, (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 other products or services utilizing the Company IP, and (iii) there are no restrictions on the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 4.17(b5.20(d)(i) of the Company Disclosure Schedule contains a true and complete and accurate list of all Software owned by the Company or any Company Subsidiary as of the date of this Agreement (the OWNED SOFTWARE) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereofRegistered IP. The Company or one 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 office actions and disclosure of any required information, and all assignments (and licenses where required) of the Company Subsidiaries has title to Registered IP have been duly recorded with the Owned 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 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.
(c) appropriate governmental authorities. Section 4.17(c5.20(d)(ii) of the Company Disclosure Schedule contains includes a true and complete and accurate list of (i) all Open 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 any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary 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 actions 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 must be taken within 180 days 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, none of the former or 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 person 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 4.17(e)(1) any of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 effectRegistered IP. The Company and each Company Subsidiary of its Subsidiaries have complied with all applicable notice and marking requirements for such Patentsthe Registered IP. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and, Trademarks to the knowledge of the Company, all Registered IP is valid and Copyrightsenforceable.
(ge) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Company's knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses Section 5.20(e)(i) of the Company Disclosure Schedule contains (A) a true and Company Subsidiaries as currently conducted, does not violate or infringe the rights complete list of any person in any Intellectual Property.
(h) The execution all licenses 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 other Contracts pursuant to which the Company or any Company Subsidiary is a partygranted rights in any third-party Intellectual Property (excluding any Publicly Available Software) (x) sold with, cause incorporated into or used in the loss or encumbrance development of any Company Intellectual Property Software Product, or (y) used or held for use by the Company for any other purpose (excluding, for purposes of clause (y) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms), (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. Section 5.20(e)(ii) of the Company Disclosure Schedule contains a true and complete 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 benefit related theretopart thereof to a third party, result 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.
(f) The Company and its Subsidiaries have taken all commercially reasonable steps to protect their rights in the creation 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 Lien in of their trade secrets or upon 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, or other legally binding obligations, requiring such Person to maintain the confidentiality of such information or materials.
(g) The Company Intellectual Property and its Subsidiaries have obtained from all parties (including current or rightformer directors, officers or employees) who have created any portion of, or otherwise impair who would have any rights in or to, any Company IP or Company Software Product valid and enforceable assignments of any such rights to the Company's Company and its Subsidiaries either in writing or through operation of law. 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 Company Subsidiary's ability of its Subsidiaries, or any successor to use the Company or any of its Subsidiaries, in any Company IP or Company Software Product.
(h) Section 5.20(h) of the Company Disclosure Schedule contains a true and complete list of all Company Software Products.
(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 same manner as provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including 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 is currently used by the Company or any Company Subsidiary.
(i) Subsidiary has been used in its entirety and without modification. Neither the Company nor any Company Subsidiary has assigned, sold incorporated or otherwise transferred ownership used Publicly Available Software in a manner that would require, or condition the use or distribution of any material PatentCompany Software Product on the disclosure, Trademark licensing or Copyright since December 31, 2001distribution of any source code for any portion of such Company Software Product.
(j) The Company and each 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 Subsidiaries have taken reasonable steps or its authorized users, or any other associated software, firmware, hardware, computer system or network (including without limitation what are sometimes referred to protect their rights in respect of Company Owned Intellectual Propertyas “viruses”, including complying with appropriate marking/notice requirements and to the knowledge of “worms”, “time bombs” and/or “back doors”).
(k) Neither the Company no such rightsnor 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, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company SubsidiarySoftware Product. Neither the Company nor any Company Subsidiary is or has agreed to waive ever been a member or promoter of, or a contributor to, 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 industry standards body or similar organization that are required to be taken by could compel the Company or any Company such Subsidiary within 180 days of the date of this Agreement with respect to grant or offer to any of the other Person any license or right to such 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 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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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 CommissionIP.
(m) For purposes The IT Assets operate and perform in all material respects in a manner that permits the Company and each of this Agreementits Subsidiaries to conduct its business as currently conducted and, to the following terms shall knowledge of the Company, no person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries have the definitions set forth below:implemented reasonable backup and disaster recovery technology processes consistent with industry practices.
Appears in 2 contracts
Samples: Merger Agreement (Stellent Inc), Merger Agreement (Oracle Corp)
Intellectual Property; Computer Software. (a) Section 4.17(a)(i) of the Company Disclosure Schedule 4.19 sets forth (i) a complete and accurate correct list as of each patent and patent application and each copyright, copyright application, trademark, trademark application (in any such case, whether registered or to be registered in the United States of America or elsewhere), process, invention, trade secret, trade name, computer program, formula and customer list (collectively, the "Intangible Personal Property") of the date hereof of all Company Owned Intellectual Property Acquired Company, and (ii) the owner of such Company Owned Intellectual Property and any registration thereof or application therefor. Section 4.17(a)(ii) of the Company Disclosure Schedule sets forth a complete and accurate correct list of Contracts existing as of the date hereof pursuant all material licenses or similar agreements or arrangements ("Licenses") to which the Acquired Company is a party either as licensee or one licensor for each such item 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 clear of all Liens, other than (A) immaterial Liens that do not limit the ability 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 and sublicense any Company Owned Intellectual Intangible Personal Property, without payment or other material obligation, to any other person.
(b) Section 4.17(b) Except as set forth on Schedule 4.19 to the best of the Company Disclosure Schedule contains a complete and accurate list of all Software owned by the Company or any Company Subsidiary as of the date of this Agreement (the OWNED SOFTWARE) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereof. The Company or one of the Company Subsidiaries has title to the Owned 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 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.Acquired Shareholder's knowledge:
(c) Section 4.17(c) of the Company Disclosure Schedule contains a complete and accurate list of (i) all Open Source Software and (ii) all other Licensed Software that is material as identified by the license There are no pending actions or other agreement by which such right to use has been obtained and judicial or adversary proceedings involving the duration or term thereof. The Acquired Company and concerning any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective licenseitem of Intangible Personal Property, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary has disclosed Licensed Software hasand, 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 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, none of the former or 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 person 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 4.17(e)(1) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights.
(g) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Acquired Company's knowledge, between January 1, 1999 no such action or proceeding is threatened and the date of this Agreement, neither the Company nor any Company Subsidiary is violating no claim or other demand has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate been made or infringe the rights of threatened by any person in relating to any Intellectual item of Intangible Personal Property.;
(hii) The execution Acquired Company has the right 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 authority 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 each item of any material Patent, Trademark or Copyright since December 31, 2001.
(j) The Company and each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has agreed to waive any rights in Company Intellectual Intangible Personal 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 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 its businesses in the business 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 the Company and the Company Subsidiaries including its and their activities on any other person or related entity;
(iii) There are no outstanding or, to the World Wide Web Acquired Company's knowledge, threatened disputes or disagreements with respect to any Licenses; and
(iv) The conduct by the WEB) and the Internet, one or more written privacy statements or policies governing the collection, maintenance, and use Acquired Company of data and information collected from users of Web sites owned, operated, or maintained by, on behalf of, or for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, along its business does not conflict with the collectionvalid patents, maintenancetrademarks, and use trade secrets or trade names 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 Commissionothers.
(m) For purposes of this Agreement, the following terms shall have the definitions set forth below:
Appears in 1 contract
Intellectual Property; Computer Software. (a) Section 4.17(a)(i) of the Company Disclosure Schedule sets forth (i) a complete and accurate list as of the date hereof February 28, 2005 of all Company Owned Intellectual Property and (ii) the owner of such Company Owned Intellectual Property and any registration thereof or application therefor. Section 4.17(a)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of Contracts existing as of the date hereof 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 clear of all Liens, other than (A) immaterial Liens that do not limit the ability 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 and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any 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 Company Subsidiary as of the date of this Agreement February 28, 2005 (the OWNED SOFTWARE“Owned Software”) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereof. The Company or one of the Company Subsidiaries has title to the Owned 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 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.
(c) Section 4.17(c) of the Company Disclosure Schedule contains a complete and accurate list of (i) all Open 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 any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary 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 the date of this Agreement February 28, 2005 (collectively, the COMPANY SOFTWARE“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 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 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 AgreementFebruary 28, 2005, none of the former or 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 person 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 4.17(e)(1) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement February 28, 2005 pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement February 28, 2005 pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights.
(g) Between January 1, 1999 and the date of this AgreementFebruary 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 or their products or services. To the Company's ’s knowledge, between January 1, 1999 and the date of this AgreementFebruary 28, 2005, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property.
(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 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 ’s or any Company Subsidiary's ’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 each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary 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 any Company Subsidiary within 180 days of the date of this Agreement February 28, 2005 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 related to the World Wide Web (the WEB“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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES“Company Web Sites”) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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) For purposes of this Agreement, the following terms shall have the definitions set forth below:
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
Intellectual Property; Computer Software. (ai) Section 4.17(a)(i3.1(j)(i) of the Company Disclosure Schedule sets forth a complete list of (i) a complete all trademarks, trade names, service marks, service names, and accurate list as brand names (whether or not any of the date hereof 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 all the same and a description of the same) that are material and applicable to or used in the businesses of Company Owned Intellectual Property and or any of its Subsidiaries; (ii) the owner of such Company Owned Intellectual Property 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 4.17(a)(ii3.1(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 Disclosure Schedule sets forth a complete and accurate list or any of Contracts existing as of the date hereof pursuant to which the its Subsidiaries) are owned by 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 its Subsidiaries free and clear of all Liensliens, other than (Aclaims, security interests and encumbrances. Except as set forth in Section 3.1(j)(i) immaterial Liens that do not limit the ability of the Company or any Company Subsidiary to useDisclosure Schedule, 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 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 Subsidiary has entered into nor any agreements which limit of its Subsidiaries is violating, the rights of others in any respect its or their right to usetrademark, executetrade name, reproduceservice xxxx, displaycopyright, performpatent, modifytrade secret, enhance, distribute, prepare Derivative Works of and sublicense any Company Owned Intellectual Property, without payment know-how or other material obligation, to any other personintangible asset.
(bii) Section 4.17(b3.1(j)(ii) of the Company Disclosure Schedule contains a complete and accurate list of all Software owned by the Company or any Company Subsidiary as of the date of this Agreement (the OWNED SOFTWARE) that is materialOwned Software, which list specifies which of the Company or any Company Subsidiary and of its Subsidiaries is the owner thereof. The Except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule, Company or one of the Company its Subsidiaries has title to the Owned Software, free and clear of all Liensclaims, 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. Except as set forth in Section 3.1(j)(ii) immaterial Liens that do not limit the ability of the Company 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 any Company Subsidiary to use, modify, extend or enhance the same or require any royalty or other similar payment to be made disclosed to any person other than parties, except as set forth in Section 3.1(j)(ii) of the Company 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 Company Subsidiary and (B) statutory Liens for Taxes not yet due or payablesuch obligation of confidentiality.
(ciii) Section 4.17(c3.1(j)(iii) of the Company Disclosure Schedule contains a complete and accurate list of all software (iother than commercially available over-the-counter “shrink-wrap” software) all Open Source Software and (ii) all other Licensed Software that is material as identified to Company’s business and under which Company or any of its Subsidiaries is a licensee, lessee or otherwise has obtained the right to use (the “Licensed Software”), and identifies by title, date and party, the license or other agreement by which such right to use has been obtained obtained, and the duration or term thereof. The Except as set forth in Section 3.1(j)(iii) of the Disclosure Schedule, Company and any Company Subsidiary of its Subsidiaries utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, of its Subsidiaries and the Company and each of the Company its Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None Except as disclosed in Section 3.1(j)(iii) of the Disclosure Schedule, none of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, of any Owned Software or any other Licensed Software. Neither the Company nor any Company Subsidiary of its Subsidiaries has published or disclosed any Licensed Software or other Third Party Software to any other party except except, in the case of Licensed Software that Company or one of its Subsidiaries leases or markets to others, in accordance with and as permitted by any license, lease or similar agreement relating to the Licensed Software or and except pursuant to contracts requiring such other Third Party Software, in which case neither parties to keep the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distributionLicensed Software confidential. No party to whom the Company or any Company Subsidiary one of its Subsidiaries has disclosed Licensed Software has, to the knowledge of Company, breached its such obligation of confidentiality in any material respect. To the knowledge 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 Software or impair Company, no (i) Open Source ’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 embedded in or bundled, shipped or distributed not used with respect to any Customer Owned 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 material portion of any Customer such Owned Software to any person, including into the open source Software software community.
(div) The Owned Software, Software and Licensed Software and commercially available over-the-counter "“shrink-wrap" Software ” software constitute all Software software used in the businesses of the Company and the Company its Subsidiaries as of the date of this Agreement (collectively, the COMPANY SOFTWARE“Company Software”). Section 4.17(d3.1(j)(iv) 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 have performed, within the date hereof have performed last three (3) years, 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) of its Subsidiaries and identifies all contracts and agreements pursuant to which such services were performed. Each All such listed entity or person has persons have 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 inventions, discoveries, improvements 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, none Except as set forth in Section 3.1(j)(iv) of the former Disclosure Schedule, neither Company nor any of its Subsidiaries is infringing any intellectual property rights of any other person or current members of management or key personnel of entity with respect to the Company or any Company SubsidiarySoftware, including all former and current employeesand, 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 person or entity is infringing in any respect any Intellectual Property intellectual property rights of the Company or any Company Subsidiary of its Subsidiaries with respect to the Company Software.
(ev) Section 4.17(e)(13.1(j)(v)(A) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary of its Subsidiaries has been granted rights to market Third Party Softwaresoftware owned by third parties, and Section 4.17(e)(23.1(j)(v)(B) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Acquired Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights.
(g) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Company's knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property.
(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 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 each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary 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 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 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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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) For purposes of this Agreement, the following terms shall have the definitions set forth below:
Appears in 1 contract
Intellectual Property; Computer Software. (a) Section 4.17(a)(i) of the Company Disclosure Schedule sets forth (i) a complete and accurate list as of the date hereof of all Company Owned Intellectual Property and (ii) the owner of such Company Owned Intellectual Property and any registration thereof or application therefor. Section 4.17(a)(ii) of the Company 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 clear of all Liens, other than (A) immaterial Liens that do not limit the ability 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 and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any 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 Company Subsidiary as of the date of this Agreement (the OWNED SOFTWARE“Owned Software”) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereof. The Company or one of the Company Subsidiaries has title to the Owned 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 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.
(c) Section 4.17(c) of the Company Disclosure Schedule contains a complete and accurate list of (i) all Open 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 any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary 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 the date of this Agreement (collectively, the COMPANY SOFTWARE“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, none of the former or 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 person 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 4.17(e)(1) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights.
(g) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Company's ’s knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property.
(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 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 ’s or any Company Subsidiary's ’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 each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary 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 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 related to the World Wide Web (the WEB“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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES“Company Web Sites”) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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) For purposes of this Agreement, the following terms shall have the definitions set forth below:
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
Intellectual Property; Computer Software. (a) Section 4.17(a)(i) of the Company Disclosure Schedule sets forth 4.21 (i) a complete and accurate list as of the date hereof of all Company Owned Intellectual Property and (ii) the owner of such Company Owned Intellectual Property and any registration thereof or application therefor. Section 4.17(a)(iia) of the Company Disclosure Schedule sets forth a complete and accurate correct list and summary description of all patents, material unpatented inventions set forth in or described in writing, trademarks, tradenames, service marks, service names, brand names and copyrights, registrations thereof and applications therefore, applicable to or used in the business of the Company, together with a complete list of Contracts existing as of the date hereof pursuant to which the Company all licenses granted by or one of the Company Subsidiaries has obtained rights to the Company Licensed Intellectual Property (other than Contracts with respect to any of the non-disclosure of which therein does not constitute a misrepresentation under Section 4.15(g))above. All Company Owned Intellectual Property is such patents, material unpatented inventions, trademarks, tradenames, service marks, service names, brand names and copyrights are owned by the Company or one of the Company Subsidiaries Company, free and clear of all Liensliens, other than (A) immaterial Liens that do claims, security interests and encumbrances of any nature whatsoever. The Company is not limit the ability currently in receipt of any notice of any violation or infringement of, and the Company is not knowingly violating or infringing, the rights of others in any Company Subsidiary to usepatent, modifyunpatented invention, extend or enhance the same or require any royalty trademark, tradename, service mark, copyright, trade secxxx, know-how, design, process 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 and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any other personintangible asset.
(bi) Section 4.17(bSchedule 4.21(b)(i) of the Company Disclosure Schedule contains a complete and accurate list of all Software computer software owned by the Company or any Company Subsidiary as of the date of this Agreement (other than "off-the-shelf" software that has not been customized for its use) (the OWNED SOFTWARE"Owned Software"). Except as set forth on Schedule 4.21(b)(i) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereof. The Company or one of Disclosure Schedule, the Company Subsidiaries has exclusive title to the Owned Software, free and clear of all Liensclaims, including claims or rights of employees, agents, consultants, contractors, partners, inventors, customers, licensees or other parties involved in the development, creation, documentation, marketing, maintenance, enhancement or licensing of such computer software. The Owned Software is not dependent on any Licensed Software (as defined in subsection (ii) below) in order to operate fully in the manner in which it is intended. No Owned Software has been published or knowingly disclosed to any other parties, except as set forth on Schedule 4.21(b)(i)of the Company Disclosure Schedule, and except pursuant to contracts requiring such other than (A) immaterial Liens that do not limit parties to keep the ability Owned Software confidential. To the knowledge of the Company or and Priddy, no such other partx xxx breached 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 payableobligation of confidentiality.
(cii) Section 4.17(cSchedule 4.21(b)(ii) of the Company Disclosure Schedule contains a complete and accurate list of (i) all Open Source Software and (ii) all other Licensed Software that software under which the Company is material as identified by a licensee, lessee or otherwise has obtained the license or other agreement by which such right to use has been obtained software and the duration Company pays a royalty for the use of such software (the "Licensed Software"). Schedule 4.21(b)(ii) of the Company Disclosure Schedule also sets forth a list of all license fees, rents, royalties or term thereofother charges that the Company is required or obligated to pay with respect to Licensed Software. The Company and any Company Subsidiary utilizing such Licensed Software has the rights right and licenses license to the use, sublicense, modify and copy Licensed Software Software, free and clear of any limitations or encumbrances, except as may be set forth in Schedule 4.21(b)(ii) of the respective Company Disclosure Schedule. The Company is in material compliance with all provisions of each license, lease or other similar agreement pursuant to which it has rights to use the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each Software. Except as disclosed on Schedule 4.21(b)(ii) of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None Disclosure Schedule, none of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, of any Owned Software or any other Licensed Software. Neither the The Company nor any Company Subsidiary has not published or knowingly disclosed any Licensed Software or other Third Party Software to any other party except except, in the case of Licensed Software which the Company leases or markets to others, in accordance with and as permitted by any license, lease or similar agreement relating to the Licensed Software or and except pursuant to contracts requiring such other Third Party Software, in which case neither parties to keep the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary has disclosed Licensed Software has, to the knowledge of Company, breached its obligation of confidentiality in any material respectconfidential. To the knowledge of the CompanyCompany and Priddy, no (i) Open Source party to whom txx Xxxpany has disclosed Licensed 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 has breached such obligation of any portion of any Customer Software to any person, including into the open source Software communityconfidentiality.
(diii) The Owned Software, Licensed Software and commercially available over-the-counter "shrink-wrap" Licensed Software constitute all Software material software used in the respective businesses of the Company and the Company Subsidiaries as of the date of this Agreement (collectively, the COMPANY SOFTWARE"Company Software"). Section 4.17(dSchedule 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 on or prior to the date hereof have performed computer programming services for the Company or at any Company Subsidiary (it being understood that if any entity was engagedtime since January 1, the entity rather than the individual persons working for such entity are to be listed) 1993 and identifies all contracts and agreements pursuant to which such services were performed. Each such listed entity The transactions contemplated herein will not cause a breach or person has executed an agreement providing that default under any licensee, leases or similar agreements relating to the Company Software or a impair the ability of Parent and the Company Subsidiary, to use the Company Software subsequent to the date hereof in the same manner as the case may be, has Company Software is currently used by the exclusive ownership Company. The Company is not knowingly infringing any intellectual property rights of any other person or entity with respect 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, none of the former or current members of management or key personnel of the Company or any Company SubsidiarySoftware, including all former and current employeesand, 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 Companyand Priddy, no other person or entity xxxxxy is infringing in any respect any Intellectual Property intellectual property rights of the Company or any Company Subsidiary with respect to the Company Software.
(e) Section 4.17(e)(1) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights.
(g) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Company's knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property.
(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 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 each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary 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 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 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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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) For purposes of this Agreement, the following terms shall have the definitions set forth below:
Appears in 1 contract
Intellectual Property; Computer Software. (a) Section 4.17(a)(i) 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 Disclosure Schedule sets forth (i) and its Subsidiaries as currently conducted or as currently proposed to be conducted in a complete and accurate list written business or development plan as of the date hereof of all this Agreement by the Company Owned Intellectual Property and or any of its Subsidiaries (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 owner creation of such Company Owned any Lien with respect to any of the Intellectual Property Rights owned or otherwise held by the Company or any of its Subsidiaries.
(b) In the five years immediately prior to the date of this Agreement, there have been, and there are currently, no legal disputes or claims pending or, to the Company’s knowledge, threatened (i) alleging infringement, misappropriation or any registration thereof other violation of any Intellectual Property Rights of any Person by the Company or application therefor. Section 4.17(a)(iiany of its Subsidiaries or any of their respective products or services, or (ii) challenging the scope, ownership, validity, or enforceability of the Company 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 IP owned by the Company or one any of its Subsidiaries or of the Company and its Subsidiaries’ rights under the Necessary IP Rights. None of the Company or its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person.
(i) The Company and its Subsidiaries hold all right, title and interest in and to the Company IP, free and clear of all Liensany Lien, other than (Aii) immaterial Liens that do not limit the ability of the Company or any Company Subsidiary to useno Person, modify, 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 any contingent rights to license, sell or otherwise distribute the Company Subsidiary Software Products or other products or services utilizing the Company IP, and (Biii) statutory Liens for Taxes not yet due there are no restrictions on the disclosure, use, license or payable. Neither transfer of the Necessary IP Rights, the Company nor any IP or the 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 and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any other personSoftware Products.
(bd) Section 4.17(b4.20(d)(i) of the Company Disclosure Schedule contains a true and complete and accurate list list, as of the date of this Agreement, of all Software owned by 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 office actions and disclosure of any required information, and all assignments (and licenses where required) of the Registered IP have been duly recorded with the appropriate governmental authorities. Section 4.20(d)(ii) of the Company or any Company Subsidiary Disclosure Schedule includes a true and complete list as of the date of this Agreement (the OWNED SOFTWARE) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereof. The Company or one of the Company Subsidiaries has title to the Owned 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 material actions that must be taken within one hundred eighty (A180) immaterial Liens that do not limit the ability 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.
(c) Section 4.17(c) of the Company Disclosure Schedule contains a complete and accurate list of (i) all Open 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 any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary 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 days 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, none of the former or 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 person 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 4.17(e)(1) any of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 effectRegistered IP. The Company and each Company Subsidiary of its Subsidiaries have complied with all applicable notice and marking requirements for such Patentsthe Registered IP. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and, Trademarks and Copyrightsto the knowledge of the Company, none of the Registered IP is invalid or unenforceable.
(ge) Between January 1Section 4.20(e)(i) of the Company Disclosure Schedule contains (A) a true and complete list, 1999 and as of the date of this Agreement, neither the Company nor any Company Subsidiary has received any notice of any possible infringement or all licenses and other violation by the Company or any Company Subsidiary or any of its or their products or services. To the Company's knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property.
(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 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 Contracts pursuant to which the Company or any Company Subsidiary is a partygranted rights in any third-party Intellectual Property (excluding any Publicly Available Software) (x) sold with, cause incorporated into or used in the loss or encumbrance development 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 rightSoftware Product, or otherwise impair (y) used or held for use by the Company for any other purpose (excluding, for purposes of clause (y) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms), (B) a summary of the Company's or any Company Subsidiary's ability ’s and its Subsidiaries’ remaining payment and accounting obligations, if any, with respect to use each of the Contracts listed thereon, excluding agreements for generally available, off-the-shelf software programs licensed by the Company Software in on standard terms. Section 4.20(e)(ii) of the same manner as such Software is currently used by Company Disclosure Schedule contains a true and complete list of (A) all agreements pursuant to which the Company or any of its Subsidiaries has provided source code of any Company SubsidiarySoftware 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.
(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.
(jf) The Company and each of the Company its Subsidiaries have taken reasonable steps to protect their rights in respect of the Company Owned Intellectual Property, including complying with appropriate marking/notice requirements IP and to the knowledge protect any confidential information provided to them by any other Person under obligation of confidentiality. Without limitation of the foregoing, the Company no 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 rightsPerson to maintain the confidentiality of such information or materials.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, including officers or employees) who have created any right to prevent other persons from using portion of, or otherwise who would have any rights in or to, any Company Owned Intellectual PropertyIP or Company Software Product, have been lost or are reasonably expected in each case to be lost through failure to act the extent owned by the Company or and its Subsidiaries, valid and enforceable written assignments of any such rights to the Company Subsidiaryand its Subsidiaries and the Company has delivered true and complete copies of such assignments to Parent. 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 Subsidiary has agreed or any of its Subsidiaries, or any successor to waive the Company or any rights of its Subsidiaries, in any Company Intellectual Property except pursuant to customary right to use granting provisions of licenses to Customer SoftwareIP or Company Software Product.
(kh) Section 4.17(k4.20(h) of the Company Disclosure Schedule sets forth contains a true and complete and accurate list list, as of the date of this Agreement, of all material actions Company Software Products.
(i) No Company Software Product (including any Company Software Product currently under development) contains any code that are required is, in whole or in part, subject to be taken the provisions of any license to software that is made generally available to the public without requiring payment of fees or royalties (including 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 within 180 days 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 date disclosure, licensing or distribution of this Agreement with respect 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 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 Intellectual PropertyDisclosure Schedule.
(k) 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) The 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 and each IP, including any Company Subsidiary have at all times since January 1Software Product, 2001, maintained in connection with the conduct of the business of the Company and the Company Subsidiaries including its and their activities on or 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 for the benefit of owned by the Company or any of its Subsidiaries. Neither the Company nor any Subsidiary (COMPANY WEB SITES) and 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 compels, or provides the right to compel in the future, the Company or such privacy statements Subsidiary to grant or policies have at all relevant times been conspicuously made available offer to users of any other Person any license or right to such Company Web Sites. Such statements or policies, 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 CommissionIP.
(m) For purposes The IT Assets operate and perform in all material respects in a manner that permits the Company and each of this Agreementits Subsidiaries to conduct its business as currently conducted and, to the following terms shall Company’s knowledge, no person has gained unauthorized access to any IT Asset. Each of the Company and its Subsidiaries have the definitions set forth below:implemented reasonable backup and disaster recovery technology processes consistent with industry standard practices.
Appears in 1 contract
Intellectual Property; Computer Software. (a) Section 4.17(a)(i) 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 Disclosure Schedule sets forth (i) a complete and accurate list its Subsidiaries as of the date hereof of all Company Owned Intellectual Property and (ii) the owner of such Company Owned Intellectual Property and any registration thereof currently conducted or application therefor. Section 4.17(a)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of Contracts existing as of the date hereof pursuant currently proposed 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 be conducted by the Company or one any of its Subsidiaries (the “Necessary IP Rights”). The consummation of the Company Subsidiaries free and clear of all Lienstransactions contemplated by this Agreement will not alter, other than (A) immaterial Liens that do not limit the ability of the Company restrict, encumber, impair or extinguish 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 and sublicense any Company Owned Intellectual Property, without payment or other material obligation, to any other personNecessary IP Rights.
(b) There are no legal Proceedings pending or, to the Knowledge of the Company, 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, 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. None of the Company or its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of 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 Liens, except for Permitted Liens, (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, and (iii) there are no restrictions on the disclosure, use, license or transfer of the Necessary IP Rights, the Company IP or the Company Software Products.
(d) Section 4.17(b4.20(d)(i) of the Company Disclosure Schedule contains a true and complete and accurate list of all Software owned by the Company or any Company Subsidiary Registered IP as of the date of this Agreement (the OWNED SOFTWARE) that is material, which list specifies which of the Company or any Company Subsidiary is the owner thereofhereof. The Company or one 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 office actions and disclosure of any required information, and all assignments (and licenses where required) of the Company Subsidiaries has title to Registered IP have been duly recorded with the Owned 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 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.
(c) appropriate governmental authorities. Section 4.17(c4.20(d)(ii) of the Company Disclosure Schedule contains includes a true and complete and accurate list of (i) all Open 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 any Company Subsidiary utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, and the Company and each of the Company Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, any Owned Software or any other 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, lease or similar agreement relating to the Licensed Software or other Third Party Software, in which case neither the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distribution. No party to whom the Company or any Company Subsidiary 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 actions 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 must be taken within 120 days 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, none of the former or 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 person 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 4.17(e)(1) any of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has been granted rights to market Third Party Software, and Section 4.17(e)(2) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 effectRegistered IP. The Company and each Company Subsidiary of its Subsidiaries have complied with all applicable notice and marking requirements for such Patentsthe Registered IP. None of the Registered IP has been adjudged invalid or unenforceable in whole or part and, Trademarks to the Knowledge of the Company, all Registered IP is valid and Copyrightsenforceable.
(ge) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Company's knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses Section 4.20(e) (i) of the Company Disclosure Schedule contains (A) a true and Company Subsidiaries as currently conducted, does not violate or infringe the rights complete list of any person in any Intellectual Property.
(h) The execution all licenses 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 other Contracts pursuant to which the Company or any Company Subsidiary is a party, cause the loss granted rights in any third-party Intellectual Property (excluding any Publicly Available Software) (x) embedded or encumbrance of incorporated into or distributed with any Company Intellectual Property or material benefit related theretoSoftware Product, 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 (y) used by the Company or any of its Subsidiaries in the development or support of any Company SubsidiarySoftware Product or (z) used or held for use by the Company for any other purpose (excluding, for purposes of clause (z) only, any generally available, off-the-shelf software programs licensed by the Company on standard terms); (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. Section 4.20(e) (ii) of the Company Disclosure Schedule contains a true and complete 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 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.
(f) The Company and its Subsidiaries have taken all 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.
(g) The Company and its Subsidiaries have obtained from all parties (including current or former directors, officers or employees) who have created 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. 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 4.20(h) of the Company Disclosure Schedule contains a true and complete list of all Company Software Products as of the date hereof.
(i) Except as set forth on Section 4.20(i) of the Company Disclosure Schedule, 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) (“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 Company Subsidiary has assigned, sold incorporated or otherwise transferred ownership used Publicly Available Software in a manner that would require, or condition the use or distribution of any material PatentCompany Software Product on the disclosure, Trademark licensing or Copyright since December 31, 2001distribution of any source code for any portion of such Company Software Product.
(j) The Company and each Software Products do not contain any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost software by or are reasonably expected to be lost through failure to act by for the Company or its authorized users, or any Company Subsidiary. 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) Neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license with respect to, any Company Subsidiary has agreed IP to waive any rights in Company Intellectual Property except pursuant to customary right to use granting provisions of licenses to Customer Softwareother Person.
(ki) Section 4.17(kNo funding, facilities or personnel of any Governmental Entity were used, directly or indirectly, to develop or create, in whole or in part, any Company IP, including any Company Software Product and (ii) of neither the Company Disclosure Schedule sets forth nor any Subsidiary is or has ever been a complete and accurate list of all material actions member or promoter of, or a contributor to, any industry standards body or similar organization that are required to be taken by could compel the Company or any Company such Subsidiary within 180 days of the date of this Agreement with respect to grant or offer to any of the other Person any license or right to such 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 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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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 CommissionIP.
(m) For purposes of this Agreement, The IT Assets operate and perform in all material respects in a manner that permits the following terms shall Company and its Subsidiaries to conduct their respective businesses as currently conducted. The Company and its Subsidiaries have the definitions set forth below:implemented reasonable backup and disaster recovery technology processes.
Appears in 1 contract
Samples: Merger Agreement (Metasolv Inc)
Intellectual Property; Computer Software. (ai) Section 4.17(a)(i3.1(j)(i) of the Company Disclosure Schedule sets forth a complete list of (i) a complete all trademarks, trade names, service marks, service names, and accurate list as brand names (whether or not any of the date hereof 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 all the same and a description of the same) that are material and applicable to or used in the businesses of Company Owned Intellectual Property and or any of its Subsidiaries; (ii) the owner of such Company Owned Intellectual Property 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 4.17(a)(ii3.1(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 Disclosure Schedule sets forth a complete and accurate list or any of Contracts existing as of the date hereof pursuant to which the its Subsidiaries) are owned by 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 its Subsidiaries free and clear of all Liensliens, other than (Aclaims, security interests and encumbrances. Except as set forth in Section 3.1(j)(i) immaterial Liens that do not limit the ability of the Company or any Company Subsidiary to useDisclosure Schedule, 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 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 Subsidiary has entered into nor any agreements which limit of its Subsidiaries is violating, the rights of others in any respect its or their right to usetrademark, executetrade name, reproduceservice xxxx, displaycopyright, performpatent, modifytrade secret, enhance, distribute, prepare Derivative Works of and sublicense any Company Owned Intellectual Property, without payment know-how or other material obligation, to any other personintangible asset.
(bii) Section 4.17(b3.1(j)(ii) of the Company Disclosure Schedule contains a complete and accurate list of all Software owned by the Company or any Company Subsidiary as of the date of this Agreement (the OWNED SOFTWARE) that is materialOwned Software, which list specifies which of the Company or any Company Subsidiary and of its Subsidiaries is the owner thereof. The Except as set forth in Section 3.1(j)(ii) of the Disclosure Schedule, Company or one of the Company its Subsidiaries has title to the Owned Software, free and clear of all Liensclaims, 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. Except as set forth in Section 3.1(j)(ii) immaterial Liens that do not limit the ability of the Company 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 any Company Subsidiary to use, modify, extend or enhance the same or require any royalty or other similar payment to be made disclosed to any person other than parties, except as set forth in Section 3.1(j)(ii) of the Company 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 Company Subsidiary and (B) statutory Liens for Taxes not yet due or payablesuch obligation of confidentiality.
(ciii) Section 4.17(c3.1(j)(iii) of the Company Disclosure Schedule contains a complete and accurate list of all software (iother than commercially available over-the-counter "shrink-wrap" software) all Open Source Software and (ii) all other Licensed Software that is material as identified to Company's business and under which Company or any of its Subsidiaries is a licensee, lessee or otherwise has obtained the right to use (the "LICENSED SOFTWARE"), and identifies by title, date and party, the license or other agreement by which such right to use has been obtained obtained, and the duration or term thereof. The Except as set forth in Section 3.1(j)(iii) of the Disclosure Schedule, Company and any Company Subsidiary of its Subsidiaries utilizing such Licensed Software has the rights and licenses to the Licensed Software as set forth in the respective license, lease or similar agreement pursuant to which the Licensed Software is licensed to the Company or any Company Subsidiary, of its Subsidiaries and the Company and each of the Company its Subsidiaries are in compliance in all material respects with all applicable provisions of such agreements. None Except as disclosed in Section 3.1(j)(iii) of the Disclosure Schedule, none of the Licensed Software constitutes a component of, has been included, incorporated or embedded into or made a part of, of any Owned Software or any other Licensed Software. Neither the Company nor any Company Subsidiary of its Subsidiaries has published or disclosed any Licensed Software or other Third Party Software to any other party except except, in the case of Licensed Software that Company or one of its Subsidiaries leases or markets to others, in accordance with and as permitted by any license, lease or similar agreement relating to the Licensed Software or and except pursuant to contracts requiring such other Third Party Software, in which case neither parties to keep the Company nor any Company Subsidiary has any obligations to make royalty or other similar payments in respect of such distributionLicensed Software confidential. No party to whom the Company or any Company Subsidiary one of its Subsidiaries has disclosed Licensed Software has, to the knowledge of Company, breached its such obligation of confidentiality in any material respect. To the knowledge 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 Software or impair Company, no (i) Open Source '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 embedded in or bundled, shipped or distributed not used with respect to any Customer Owned 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 material portion of any Customer such Owned Software to any person, including into the open source Software software community.
(div) The Owned Software, Software and Licensed Software and commercially available over-the-counter "shrink-wrap" Software software constitute all Software software used in the businesses of the Company and the Company its Subsidiaries as of the date of this Agreement (collectively, the "COMPANY SOFTWARE"). Section 4.17(d3.1(j)(iv) 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 have performed, within the date hereof have performed last three (3) years, 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) of its Subsidiaries and identifies all contracts and agreements pursuant to which such services were performed. Each All such listed entity or person has persons have 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 inventions, discoveries, improvements 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, none Except as set forth in Section 3.1(j)(iv) of the former Disclosure Schedule, neither Company nor any of its Subsidiaries is infringing any intellectual property rights of any other person or current members of management or key personnel of entity with respect to the Company or any Company SubsidiarySoftware, including all former and current employeesand, 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 person or entity is infringing in any respect any Intellectual Property intellectual property rights of the Company or any Company Subsidiary of its Subsidiaries with respect to the Company Software.
(ev) Section 4.17(e)(13.1(j)(v)(A) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Company or any Company Subsidiary of its Subsidiaries has been granted rights to market Third Party Softwaresoftware owned by third parties, and Section 4.17(e)(23.1(j)(v)(B) of the Company Disclosure Schedule lists and separately identifies all agreements in effect as of the date of this Agreement pursuant to which the Acquired Company or any Company Subsidiary has granted marketing rights in the Company Software 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 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 each Company Subsidiary have complied with all applicable notice and marking requirements for such Patents, Trademarks and Copyrights.
(g) Between January 1, 1999 and the date of this Agreement, 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 or their products or services. To the Company's knowledge, between January 1, 1999 and the date of this Agreement, neither the Company nor any Company Subsidiary is violating or has violated, and the conduct of the businesses of the Company and Company Subsidiaries as currently conducted, does not violate or infringe the rights of any person in any Intellectual Property.
(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 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 each of the Company Subsidiaries have taken reasonable steps to protect their rights in respect of Company Owned Intellectual Property, including complying with appropriate marking/notice requirements and to the knowledge of the Company no such rights, including any right to prevent other persons from using rights in Company Owned Intellectual Property, have been lost or are reasonably expected to be lost through failure to act by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary 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 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 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 for the benefit of the Company or any Company Subsidiary (COMPANY WEB SITES) and such privacy statements or policies have at all relevant times been conspicuously made available to users of Company Web Sites. Such statements or policies, 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) For purposes of this Agreement, the following terms shall have the definitions set forth below:
Appears in 1 contract
Samples: Merger Agreement (Elekta AB)
