Common use of Intellectual Property; Computer Software Clause in Contracts

Intellectual Property; Computer Software. (a) Schedule 3.18 sets forth a complete and correct list of all trade names, trademarks, service marks, domain names, patents, patent rights and registered copyrights used, necessary or held by the AAC Companies in connection with the Business. The AAC Companies have delivered to Investors true, correct and complete copies of each registration, application or other material document relating to the Intellectual Property set forth in Schedule 3.18. The AAC Companies own, or possess adequate and enforceable licenses or other rights to use, all Intellectual Property used in the Business as it is currently conducted, and such ownership and licenses will not cease to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby. There is no Action pending or, to the Knowledge of the AAC Companies, threatened, against the AAC Companies asserting that the AAC Companies' use of any Intellectual Property infringes the rights of any third party or otherwise contesting their rights with respect to any Intellectual Property and no third party has given written notice to the AAC Companies that such third party is claiming ownership of or right to use any Intellectual Property, and, to the Knowledge of the AAC Companies no third party is infringing upon the rights of the AAC Companies in the Intellectual Property in a manner which would have a Material Adverse Effect on the AAC Companies. (b) The AAC Companies own, or possess adequate and enforceable licenses or other rights to use, the computer software for their systems and such ownership and licenses will not cease to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

Intellectual Property; Computer Software. (a) Schedule 3.18 sets forth a complete and correct list of all trade names, trademarks, service marks, domain names, patents, patent rights and registered copyrights used, necessary The Company owns or held by otherwise holds the AAC Companies in connection with the Business. The AAC Companies have delivered right to Investors true, correct and complete copies of each registration, application or other material document relating to the Intellectual Property set forth in Schedule 3.18. The AAC Companies own, or possess adequate and enforceable licenses or other rights to use, use all Intellectual Property used Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted (the “Necessary IP Rights , except where the failure to hold such rights would not, individually or in the Business as it is currently conductedaggregate, and such ownership and licenses will not cease reasonably be expected to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the have a Company Material Adverse Effect. The consummation of the transactions contemplated hereby. There is no Action pending orby this Agreement will not (i) restrict, to encumber, impair or extinguish any material Necessary IP Rights in any material respect, or (ii) result in the Knowledge of the AAC Companies, threatened, against the AAC Companies asserting that the AAC Companies' use creation of any Intellectual Property infringes the rights of any third party or otherwise contesting their rights material Lien with respect to any of the material Intellectual Property and no third party has given written notice to Rights owned or otherwise held by the AAC Companies that such third party is claiming ownership Company or any of or right to use any Intellectual Property, and, to the Knowledge of the AAC Companies no third party is infringing upon the rights of the AAC Companies in the Intellectual Property in a manner which would have a Material Adverse Effect on the AAC Companiesits Subsidiaries. (b) The AAC Companies ownTo the knowledge of the Company, there are no pending or threatened material Proceedings (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or its Subsidiaries or by any of its products or services, or possess adequate (ii) challenging the scope, ownership, validity, or enforceability of the Company IP, or of the Company’s or any of its Subsidiaries’ rights under the Necessary IP Rights, other than ordinary course correspondence between the Company and enforceable licenses any patent, trademark, or other rights copyright Governmental Authority in connection with the prosecution of any Registered IP. The Company and its Subsidiaries have not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person, except where such infringement, misappropriation or violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (c) (i) The Company IP is not jointly owned by any Third Party and is free and clear of any Lien, and (ii) there are no material restrictions on the disclosure, use, license or transfer of the computer software for their systems and such ownership and licenses will not cease to be valid and in full force and effect Necessary IP Rights, the Company IP or the Company Software Products, including any restrictions that would impair in any material respect Parent’s ability to operate the business immediately after the Effective Time, or that will cause the Necessary IP Rights owned by reason of the executionCompany, delivery and performance of this Agreement the Company IP or the consummation Company Software Products to be forfeited or changed adversely in any material respect as a result of the transactions contemplated herebyby this Agreement. (d) Section 5.20(d)(i) of the Company Disclosure Schedule contains a true and complete list in all material respects of all Registered IP as of the date of this Agreement. The Company and its Subsidiaries have taken all commercially reasonable actions to maintain and protect the Registered IP. None of the material Registered IP has been adjudged invalid or unenforceable in whole or part and, to the knowledge of the Company, all Registered IP is valid and enforceable. (e) Section 5.20(e)(i) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all material licenses and other material Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (x) sold with or incorporated into any Company 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 software programs licensed by the Company on standard terms and used by Company or any of its Subsidiaries solely for internal purposes); provided that with respect to Publicly Available Software, this representation is made to the knowledge of the Company as of the date of this Agreement. Section 5.20(e)(ii) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all agreements granting any third party any current or contingent material rights to further license, sell or otherwise distribute products or services other than for the Company or any of its Subsidiaries (e.g., other than any marketing, reseller, partner, OEM and distributor agreement for the Company or any of its Subsidiaries) utilizing the Company IP. (f) The Company and its Subsidiaries have taken commercially reasonable steps to protect their rights in confidential information and trade secrets and to protect any confidential information provided by any other Person under obligation of confidentiality. To the Company’s knowledge, 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. (g) Section 5.20(g) of the Company Disclosure Schedule contains a true and complete list of all Company Software Products. (h) To the knowledge of the Company, as of the date hereof, the Company and its Subsidiaries have not incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any material portion of such Company Software Product. “Publicly Available Software” means 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 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.

Intellectual Property; Computer Software. (a) Schedule 3.18 sets forth a complete and correct list of all trade names, trademarks, service marks, domain names, patents, patent rights and registered copyrights used, necessary The Company owns or held by otherwise holds the AAC Companies in connection with the Business. The AAC Companies have delivered right to Investors true, correct and complete copies of each registration, application or other material document relating to the Intellectual Property set forth in Schedule 3.18. The AAC Companies own, or possess adequate and enforceable licenses or other rights to use, use all Intellectual Property used Rights necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted (the “Necessary IP Rights”, except where the failure to hold such rights would not, individually or in the Business as it is currently conductedaggregate, and such ownership and licenses will not cease reasonably be expected to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the have a Company Material Adverse Effect. The consummation of the transactions contemplated hereby. There is no Action pending orby this Agreement will not (i) restrict, to encumber, impair or extinguish any material Necessary IP Rights in any material respect, or (ii) result in the Knowledge of the AAC Companies, threatened, against the AAC Companies asserting that the AAC Companies' use creation of any Intellectual Property infringes the rights of any third party or otherwise contesting their rights material Lien with respect to any of the material Intellectual Property and no third party has given written notice to Rights owned or otherwise held by the AAC Companies that such third party is claiming ownership Company or any of or right to use any Intellectual Property, and, to the Knowledge of the AAC Companies no third party is infringing upon the rights of the AAC Companies in the Intellectual Property in a manner which would have a Material Adverse Effect on the AAC Companiesits Subsidiaries. (b) The AAC Companies ownTo the knowledge of the Company, there are no pending or threatened material Proceedings (i) alleging infringement, misappropriation or any other violation of any Intellectual Property Rights of any Person by the Company or its Subsidiaries or by any of its products or services, or possess adequate (ii) challenging the scope, ownership, validity, or enforceability of the Company IP, or of the Company’s or any of its Subsidiaries’ rights under the Necessary IP Rights, other than ordinary course correspondence between the Company and enforceable licenses any patent, trademark, or other rights copyright Governmental Authority in connection with the prosecution of any Registered IP. The Company and its Subsidiaries have not infringed, misappropriated or otherwise violated any Intellectual Property Rights of any Person, except where such infringement, misappropriation or violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (c) (i) The Company IP is not jointly owned by any Third Party and is free and clear of any Lien, and (ii) there are no material restrictions on the disclosure, use, license or transfer of the computer software for their systems and such ownership and licenses will not cease to be valid and in full force and effect Necessary IP Rights, the Company IP or the Company Software Products, including any restrictions that would impair in any material respect Parent’s ability to operate the business immediately after the Effective Time, or that will cause the Necessary IP Rights owned by reason of the executionCompany, delivery and performance of this Agreement the Company IP or the consummation Company Software Products to be forfeited or changed adversely in any material respect as a result of the transactions contemplated herebyby this Agreement. (d) Section 5.20(d)(i) of the Company Disclosure Schedule contains a true and complete list in all material respects of all Registered IP as of the date of this Agreement. The Company and its Subsidiaries have taken all commercially reasonable actions to maintain and protect the Registered IP. None of the material Registered IP has been adjudged invalid or unenforceable in whole or part and, to the knowledge of the Company, all Registered IP is valid and enforceable. (e) Section 5.20(e)(i) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all material licenses and other material Contracts pursuant to which the Company or any Subsidiary is granted rights in any third-party Intellectual Property Rights (x) sold with or incorporated into any Company 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 software programs licensed by the Company on standard terms and used by Company or any of its Subsidiaries solely for internal purposes); provided that with respect to Publicly Available Software, this representation is made to the knowledge of the Company as of the date of this Agreement. Section 5.20(e)(ii) of the Company Disclosure Schedule contains as of the date of this Agreement, a true and complete list (in all material respects) of all agreements granting any third party any current or contingent material rights to further license, sell or otherwise distribute products or services other than for the Company or any of its Subsidiaries (e.g., other than any marketing, reseller, partner, OEM and distributor agreement for the Company or any of its Subsidiaries) utilizing the Company IP. (f) The Company and its Subsidiaries have taken commercially reasonable steps to protect their rights in confidential information and trade secrets and to protect any confidential information provided by any other Person under obligation of confidentiality. To the Company’s knowledge, 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. (g) Section 5.20(g) of the Company Disclosure Schedule contains a true and complete list of all Company Software Products. (h) To the knowledge of the Company, as of the date hereof, the Company and its Subsidiaries have not incorporated or otherwise used Publicly Available Software in a manner that would require, or condition the use or distribution of any Company Software Product on the disclosure, licensing or distribution of any source code for any material portion of such Company Software Product. “Publicly Available Software” means 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 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.

Intellectual Property; Computer Software. (a) Schedule 3.18 3.17 sets forth a complete and correct list of all trade names, trademarks, service marks, domain names, patents, patent rights and registered copyrights used, necessary or held by the AAC Companies Intellectual Property that is used in connection with the Business. The AAC Companies have Company has delivered to Investors Buyer true, correct and complete copies of each registration, application application, license, sublicense or other material document relating to the Intellectual Property set forth in Schedule 3.183.17. The AAC Companies Except as set forth in Schedule 3.17, the Company and its Subsidiaries own, or possess adequate and enforceable licenses or other rights to use, all Intellectual Property used in the Business as it is currently conducted, and such ownership and licenses will not cease to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby. To the knowledge of the Stockholders or the Company, the Company and its Subsidiaries have taken all necessary action to maintain and protect each item of Intellectual Property that it owns or uses. There is no Action pending or, to the Knowledge knowledge of the AAC CompaniesStockholders or the Company, threatened, against the AAC Companies Company or any of its Subsidiaries asserting that the AAC CompaniesCompany's or any of its Subsidiaries' use of any Intellectual Property infringes the rights of any third party or otherwise contesting their its rights with respect to any Intellectual Property and no third party has given written notice to the AAC Companies Stockholders, the Company or any of the Company's Subsidiaries that such third party is claiming ownership of or right to use any Intellectual Property, and, to the Knowledge knowledge of the AAC Companies Stockholders or the Company (i) there are no grounds for any such assertion and (ii) no third party is infringing upon the rights of the AAC Companies Company or any of its Subsidiaries in the Intellectual Property in a manner which would have a Material Adverse Effect on the AAC CompaniesCompany and its Subsidiaries taken as a whole or in a manner which, to the knowledge of the Company or the Stockholders, with the passage of time, the giving or receipt of notice or the occurrence or nonoccurrence of any other circumstance, action or event, would reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole. (b) The AAC Companies Company and its Subsidiaries own, or possess adequate and enforceable licenses or other rights to use, the computer software for their systems and the POS system and, except as set forth in Schedule 3.17, such ownership and licenses will not cease to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

Intellectual Property; Computer Software. (a) Schedule 3.18 sets forth a complete and correct list of all trade names, trademarks, service marks, domain names, patents, patent rights and registered copyrights used, necessary or held by the AAC Companies Intellectual Property that is used in connection with the Business. The AAC Companies have Company has delivered to Investors Buyer true, correct and complete copies of each registration, application application, license, sublicense or other material document relating to the Intellectual Property set forth in Schedule 3.18. The AAC Companies Company and its Subsidiaries own, or possess adequate and enforceable licenses or other rights to use, all Intellectual Property used in the Business as it is currently conducted, and such ownership and licenses will not cease to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby. To the knowledge of the Company, the Company and its Subsidiaries have taken all necessary action to maintain and protect each item of Intellectual Property that it owns or uses. There is no Action pending or, to the Knowledge knowledge of the AAC CompaniesCompany, threatened, against the AAC Companies Company or any of its Subsidiaries asserting that the AAC CompaniesCompany's or any of its Subsidiaries' use of any Intellectual Property infringes the rights of any third party or otherwise contesting their its rights with respect to any Intellectual Property and no third party has given written notice to the AAC Companies Company or any of its Subsidiaries that such third party is claiming ownership of or right to use any Intellectual Property, and, to the Knowledge knowledge of the AAC Companies Company (i) there are no grounds for any such assertion and (ii) no third party is infringing upon the rights of the AAC Companies Company or any of its Subsidiaries in the Intellectual Property in a manner which would have a Material Adverse Effect on the AAC CompaniesCompany and its Subsidiaries taken as a whole. (b) The AAC Companies Company and its Subsidiaries own, or possess adequate and enforceable licenses or other rights to use, the computer software for their systems the POS system and such ownership and licenses will not cease to be valid and in full force and effect in any material respect by reason of the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.