Intellectual Property; Data Privacy and Security. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company or its Subsidiaries own all right, title and interest in all Intellectual Property owned by the Company or its Subsidiaries (the “Owned Intellectual Property”) free and clear of all Liens, other than Permitted Liens and (ii) all material items of Owned Intellectual Property that are registered or otherwise filed with the U.S. Patent and Trademark Office, U.S. Copyright Office, or equivalent foreign registering body anywhere in the world are subsisting and, to the Knowledge of the Company, valid and enforceable.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, or as set forth on Section 4.16(b) of the Company Disclosure Schedule: (i) to the Knowledge of the Company, the conduct of the business of the Company and its Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any valid and enforceable Intellectual Property rights of any Person; (ii) to the Knowledge of the Company, no Person is infringing, misappropriating or otherwise violating the Intellectual Property rights owned by the Company or its Subsidiaries; (iii) there is no material claim pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries alleging that the Company or any of its Subsidiaries have infringed, misappropriated or otherwise violated any valid and enforceable Intellectual Property rights of any Person; (iv) (A) none of the Owned Intellectual Property is subject to any outstanding judgment, injunction, order or decree restricting the use thereof by the Company or its Subsidiaries and (B) there are no pending or, to the Knowledge of the Company, threatened claims or allegations seeking to challenge the validity, enforceability or ownership of the Company’s or any of its Subsidiaries’ rights in any material Intellectual Property owned by the Company or its Subsidiaries; and (v) the Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of all Intellectual Property owned by the Company or its Subsidiaries, the value of which to the Company and its Subsidiaries is contingent upon maintaining the confidentiality thereof.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company M...
Intellectual Property; Data Privacy and Security. (a) The Company is the sole and exclusive owner of all Owned Intellectual Property, free and clear of all Liens. All Owned Intellectual Property is valid and enforceable. Schedule 3.10(a) contains an accurate and complete list of all Owned Intellectual Property (including Trademarks, and Software). All registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees. No loss or expiration of any Owned Intellectual Property is threatened, pending or reasonably foreseeable, except for patents expiring at the end of their statutory terms (and not as a result of any act or omission by the Company, including failure by the Company to pay any required maintenance fees).
(b) The Company has taken all necessary and desirable action to maintain and protect all of the Owned Intellectual Property. The Company has taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other confidential information of the Company (and any confidential information owned by any Person to whom the Company has a confidentiality obligation). No such trade secrets or other confidential information have been disclosed by the Company to any Person other than pursuant to a written Contract restricting the disclosure and use of such trade secrets or any other confidential information by such Person. No current or former founder, employee, contractor or consultant of the Company has any right, title or interest, directly or indirectly, in whole or in part, in any Owned Intellectual Property. The Company has obtained from all Persons (including all current and former founders, employees and contractors) who have created any Intellectual Property for the Company, valid and enforceable written assignments of any such Intellectual Property to the Company, and the Company has delivered true and complete copies of such assignments to Buyer. No Person is in violation of any such written confidentiality or assignment Contracts.
(c) The IT Assets are operational, fulfill the purposes for which they were acquired or developed, have security, back-ups and disaster recovery arrangements in place and hardware and Software capacity, support, maintenance and trained personnel which are sufficient in all material respects for the current and anticipated future needs of the business of the Company. The Company has disaster recovery and security plans, procedures and faci...
Intellectual Property; Data Privacy and Security. (a) Section 4.18(a) of the AGCO Disclosure Schedule sets forth a true, complete and accurate list of all registrations and applications, as of the date hereof, of all Patents and Marks included in the JCA IP. The registrations and applications set forth in Section 4.18(a) of the AGCO Disclosure Schedule are subsisting, unexpired and, to the Knowledge of AGCO, valid and enforceable. AGCO or one of its Affiliates is the sole and exclusive owner of all the JCA IP, free and clear of all Liens other than Permitted Liens. As of the date hereof, all registrations and applications of all Patents, Copyrights and Marks included in the JCA IP have been duly filed or registered (as applicable) with the applicable Governmental Entity having jurisdiction over the issuance of patents and trademarks, including the submission of all necessary filings and fees in accordance with the legal and administrative requirements of the appropriate Governmental Entity having jurisdiction over the issuance of patents. As of the date hereof, no interference, opposition, cancellation, reexamination or revocation has been declared or provoked relating to any such Patents, Copyrights or Marks and all maintenance and annual fees have been fully paid with respect to such Patents, Copyrights or Marks that have issued or been registered.
(b) There has been no Action pending or, to the Knowledge of AGCO, threatened in writing against AGCO since December 31, 2020 (i) alleging that the conduct of the JCA Business infringes, violates or misappropriates the Intellectual Property Rights of any Person or (ii) challenging AGCO’s or its Affiliates’ ownership of any material JCA IP.
(c) (i) The conduct of the JCA Business does not infringe, violate or misappropriate the Intellectual Property Rights other than Patents (or, to the Knowledge of AGCO, Patents) of any Person and (ii) to the Knowledge of AGCO, no Person is infringing, violating or misappropriating any JCA IP in any material respect. Section 4.7, Section 4.8, Section 4.18(b) and this Section 4.18(c) are the sole and exclusive representations and warranties of AGCO regarding any infringement, violation or misappropriation of Intellectual Property Rights.
(d) AGCO and its Affiliates have taken commercially reasonable measures to protect the confidentiality, integrity, and security of the material Trade Secrets included in the JCA IP and JCA Data. Except where such Intellectual Property Rights are assigned by operation of Law, each current and f...
Intellectual Property; Data Privacy and Security. (a) Section 4.13(a)(i)(i) of the Company Disclosure Schedule contains a true, correct and complete list of all of the following that are owned by any Company Group Member: (i) Registered Intellectual Property constituting Company-Owned IP (showing in each, as applicable, the filing date, date of issuance, expiration date and registration or application number, and registrar), (ii) all contracts or agreements to use any Company-Licensed IP, including for the Software or Business Systems of any other person (other than unmodified, commercially available, “off-the-shelf” Software with a replacement cost and aggregate annual license and maintenance fees of less than $100,000); and (iii) any Software or Business Systems constituting Company-Owned IP that are material to the business of the Company Group as currently conducted as of the date hereof. The Company IP constitutes all Intellectual Property rights used in, or necessary for, the operation of the business of the Company Group and is sufficient for the conduct of such business as currently conducted as of the date hereof.
(b) The Company Group solely owns and possesses, free and clear of all Liens (other than Permitted Liens), all right, title and interest in and to the Company-Owned IP and has the right to use, pursuant to a valid and enforceable written license, all Company-Licensed IP. All Company-Owned IP is subsisting and, to the knowledge of the Company, valid and enforceable.
(c) Since December 31, 2018, the Company Group has taken and takes reasonable actions to maintain, protect and enforce Intellectual Property rights, including the secrecy, confidentiality and value of its trade secrets and other Confidential Information. Since December 31, 2020, no Company Group Member has disclosed any trade secrets or other Confidential Information that is material to the business of the Company to any other person other than pursuant to a written confidentiality agreement under which such other person agrees to maintain the confidentiality and protect such Confidential Information.
(d) Except as set forth on Section 4.13(d) of the Company Disclosure Schedule, (i) since December 31, 2018, there have been no material claims filed and served, or threatened in writing (including email), against any Company Group Member, by any person (A) contesting the validity, use, ownership, enforceability, patentability or registrability of any of the Company IP, or (B) alleging any infringement or misappropriation of, or ...
Intellectual Property; Data Privacy and Security. (a) Section 3.17(a) of the Company Disclosure Letter sets forth a correct and complete list (in all material respects) of all (i) issued patents and patent applications, (ii) trademark registrations and applications and material unregistered trademarks (iii) copyright registrations and applications, and (iv) Internet domain names, each owned the Company in any jurisdiction in the world.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company and the Company Subsidiaries exclusively own, or have the valid right to use, all Intellectual Property used in their business as presently conducted and such conduct does not infringe or otherwise violate any Person’s Intellectual Property, (ii) there is no Claim of such infringement or other violation pending or, to the Knowledge of the Company, threatened in writing against the Company or any Company Subsidiary, (iii) to the Knowledge of the Company, no Person is infringing or otherwise violating any Intellectual Property owned by the Company and the Company Subsidiaries, and (iv) no Claims of such infringement or other violation are pending or threatened in writing against any Person by the Company or any Company Subsidiary.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all computer hardware, firmware, databases, software, systems, information technology infrastructure, networks, and other similar or related items of automated, computerized or software systems, infrastructure, and telecommunication assets and equipment owned or used by or for the Company or any of the Company Subsidiaries (collectively, the “Company Systems”) (i) are functional and operate and run in a reasonable business manner and (ii) are sufficient for the current needs of the business of the Company and the Company Subsidiaries including as to capacity and ability to meet current average peak volumes in a timely manner, and there have been no material failures, security breaches, breakdowns, outages, or unavailability of any of the foregoing since January 1, 2022 that have caused any substantial disruption or interruption in or to the use of such Company Systems or the conduct of the business of the Company or any of the Company Subsidiaries. The Company and the Company Subsidiaries maintain reasonable backup and disaster recovery plans and procedures...
Intellectual Property; Data Privacy and Security. (a) Section 3.20(a) of the Disclosure Letter provides a complete and accurate list of all Intellectual Property registered with or filed for registration with any Governmental Authority by or on behalf of Sellers, the Companies, or their respective Subsidiaries that are exclusively related to the Business (collectively, with all Intellectual Property registered with or filed for registration with any Governmental Authority by or on behalf of Sellers, the Companies, or their respective Subsidiaries that are primarily related to the Business and not substantially used by the Consumer Business, “Registered IP”). To the Knowledge of Sellers, all Registered IP are subsisting, valid and enforceable.
(b) Sellers, the Companies or one of their respective Subsidiaries exclusively own all right, title, and interest in and to each item of the Transferred IP free and clear of any Liens, other than Permitted Liens.
(c) Except as set forth in Section 3.20(a) of the Disclosure Letter, as of the date of this Agreement, there is no material Action pending or, to the Knowledge of Sellers, threatened in writing against Sellers, the Companies or their respective Subsidiaries in the last two (2) years, (i) alleging that the conduct of the Business infringes, violates or misappropriates Intellectual Property of any Person in any material respect or (ii) challenging Sellers’, the Companies’ or any of their applicable Subsidiary’s ownership of any of the material Transferred IP.
(d) Except as set forth in Section 3.20(a) of the Disclosure Letter, (i) the conduct of the Business does not infringe, violate or misappropriate, and has not, for the last two (2) years, infringed, violated, or misappropriated, the Intellectual Property of any Person in any material respect and (ii) to the Knowledge of Sellers, no Person is infringing, violating or misappropriating any Transferred IP, except as would not have a material adverse impact on the Business. Section 3.20(a) and this Section 3.20(a) are the sole and exclusive representations and warranties regarding any infringement, violation or misappropriation of Intellectual Property.
(e) Sellers, the Companies and their respective Subsidiaries have taken commercially reasonable measures to protect the confidentiality of the trade secrets included in the Transferred IP that are used in and material to the Business, and to the Knowledge of Sellers, such trade secrets have not been used or disclosed to any third party, except pursuant to confi...
Intellectual Property; Data Privacy and Security. (a) Section 2.12(a) of the Disclosure Schedule lists all patents and patent applications, registered Trademarks and Trademark applications, registered copyrights and copyright applications within the Business IP that are material to the Business, taken as a whole (the “Designated Intellectual Property”). No material Designated Intellectual Property has been abandoned, and to Sellers’ knowledge, such material Designated Intellectual Property is (to the extent issued) valid and enforceable. Except as otherwise noted in Section 2.12(a) of the Disclosure Schedule, the applicable Asset Seller or the applicable Acquired Company exclusively owns all of the material Designated Intellectual Property and other material Business IP, free and clear of all Security Interests other than Permitted Liens. Except with respect to in-licensed Intellectual Property, each person that has created or invented any material Designated Intellectual Property or other material Intellectual Property included in the Business IP has assigned in writing to an Asset Seller or an Acquired Company all of their rights in same that do not vest initially in an Asset Seller or an Acquired Company by operation of Law; except that, with respect to any Intellectual Property that is co-owned by an Asset Seller or an Acquired Company and any other Person, this sentence only applies to such Asset Seller’s or Acquired Company’s ownership interest. The Sellers and Acquired Companies have taken commercially reasonable measures to maintain and protect the confidentiality of the trade secrets which are included in the Business IP and are material to the Business. “Business IP” means all Intellectual Property that is (i) included in the Acquired Assets, or (ii) owned or purported to be owned by an Acquired Company.
Intellectual Property; Data Privacy and Security. (a) Section 3.17(a) of the Company Disclosure Schedule sets forth a list of all (i) issued patents and pending patent applications, (ii) trademark and service mark registrations and applications, (iii) copyright registrations, and (iv) internet domain name registrations, in each case that are owned by the Company (collectively, the “Company Registered Intellectual Property”). Except as has not had or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company Registered Intellectual Property is subsisting, and, (ii) no Proceeding is pending or, to the Knowledge of the Company, is threatened, that challenges the validity, enforceability, registration, use or ownership of any Company Registered Intellectual Property.
(b) Section 3.17(b) of the Company Disclosure Schedule sets forth a complete and accurate list of all licenses of material Intellectual Property used by the Company in which the Company is the licensee, excluding any “shrink wrapped”, “click through” or other “off-the-shelf” Software that is commercially available on reasonable terms to any Person for a license fee, royalty or other consideration of no more than $50,000 per copy or user, or annually (the “Material IP Contracts”). As of the date hereof, such Material IP Contracts are in full force and effect and no material default exists on the part of the Company or, to the Knowledge of the Company, on the part of any counterpart thereto. There is no outstanding or, to the Knowledge of the Company, threatened dispute or disagreement with respect to any Material IP Contract.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company exclusively owns the Company Owned Intellectual Property free and clear of all Liens (other than Permitted Liens), and (ii) neither the execution and delivery of this Agreement by the Company, nor the performance of this Agreement by the Company, will result in the loss, forfeiture, termination, or impairment of, or give rise to a right of any Person to limit, terminate, or consent to the continued use of, any rights of the Company in any Owned Intellectual Property. The Company is not bound by any outstanding consent, settlement, judgment, injunction, order or decree restricting the use of Owned Intellectual Property or restricting the licensing thereof to any Person.
(d) To the Knowledge of the Company, the Company has...
Intellectual Property; Data Privacy and Security. (a) Schedule 4.15(a) of the Company Disclosure Schedules lists all Company-Owned IP that is registered, issued or subject to a pending application for registration or issuance, including patents, trademarks, service marks, copyrights, Internet domain names and social media accounts and handles (and applications for the foregoing) (the “Company IP Registrations”). One or more Group Companies solely owns all rights, title and interests in and to the Company-Owned IP (including the Company IP Registrations), free and clear of any Liens other than Permitted Liens. A Group Company is the record owner (in the case of domain names, the registrant either directly or by proxy) of each Company IP Registration, and all Company IP Registrations are subsisting, and valid and enforceable, subject to the General Enforceability Exceptions. The validity, enforceability, scope of, and the Group Companies’ title to, any Company-Owned IP is not being challenged in any (x) outstanding ruling or order by a Governmental Authority, or (y) except as set forth on Schedule 4.15(a) of the Company Disclosure Schedules, litigation or Action (including any opposition, cancellation, interferences, inter partes review, or re-examination) pending or threatened in writing to which any Group Company is a party.
(b) As of the Closing, after giving effect to the Transition Services Agreement, the Group Companies solely own, are licensed to or otherwise have the valid and enforceable right to use all Intellectual Property used in or necessary to conduct the Acquired Business.
(c) Except as set forth on Schedule 4.15(c) of the Company Disclosure Schedule, no Group Company has, nor has the use of any of their respective products or services, infringed, misappropriated or violated any Intellectual Property right of any third party. No Group Company has received any written claim or written notice alleging any such infringement, misappropriation or violation in the last three (3) years (including any invitation to license or request or demand to refrain from using any Intellectual Property of any Person). To the Company’s Knowledge, no Person has infringed, misappropriated or otherwise violated any Company-Owned IP in any material respect, and no Group Company has brought any claim or sent any notice alleging any such infringement, misappropriation or violation in the last three (3) years.
(d) The Group Companies have maintained and currently maintain reasonable practices to protect the confidentia...
Intellectual Property; Data Privacy and Security. (a) Section 2.12(a) of the Disclosure Schedule lists all patents and patent applications, registered Trademarks and Trademark applications, registered copyrights and copyright applications within the Business IP that are material to the Business, taken as a whole (the “Designated Intellectual Property”). No material Designated Intellectual Property has been abandoned, and to Sellers’ knowledge, such material Designated Intellectual Property is (to the extent issued) valid and enforceable. Except as otherwise noted in Section 2.12(a) of the
