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 Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any of its Subsidiaries: (i) are sufficient for the current needs of the businesses of the Company and its Subsidiaries; (ii) to the Knowledge of the Company, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious code. (d) 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(d) of the Company Disclosure Schedule, (i) the Company and its Subsidiaries have not, since January 1, 2020, experienced any unauthorized access to or other breach of security with respect to any IT Assets, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) (A) the Company and its Subsidiaries have complied with all Applicable Laws and with their own respective privacy policies (“Privacy Policies”) relating to the collection, storage, use, processing, disclosure and transfer of any Personal Information and (B) neither the Company nor any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Company, there are no facts or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Washington Dennis R), Merger Agreement (Atlas Corp.)
Intellectual Property; Data Privacy and Security. (a) Except as would not reasonably be expected to haveSchedule 4.11(a) contains a true and complete list of each of the issuances, individually registrations and applications for issuance or registration included in the aggregateAssigned Intellectual Property, a Company Material Adverse Effectspecifying as to each such item, as applicable (i) the Company or its Subsidiaries own all rightowner of such item, 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) the title of such item, (iii) each jurisdiction in which such item is issued or registered or in which any application for issuance or registration has been filed, (iv) the respective issuance, registration, or application number of such item and (v) the date of application and issuance or registration of such item (all material items of Owned such Assigned Intellectual Property that are registered or otherwise filed with required to be listed on Schedule 4.11(a), 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“Registered IP”).
(b) Aeglea or one of its Subsidiaries is the sole and exclusive owner of the Assigned Intellectual Property.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, or as set forth in Schedule 4.11(c), there exist no restrictions on Section 4.16(b) the disclosure, use, license or transfer of the Company Disclosure Schedule: Assigned Intellectual Property. The consummation of the transactions contemplated by this Agreement will not (i) alter, encumber, impair or extinguish any Assigned Intellectual Property or Aeglea’s or its applicable Subsidiary’s rights under any Intellectual Property licensed to Aeglea or its Subsidiaries pursuant to an Assigned Contract (“Licensed Intellectual Property”); or (ii) impair the Knowledge right of Immedica or any of its Affiliates to develop, use, sell, license or otherwise dispose of, or to bring any action for the infringement, misappropriation or other violation of, any Assigned Intellectual Property.
(d) The Assigned Intellectual Property (including the Specified Patents and CPRIT Technology), Licensed Intellectual Property and the ADA Assays constitute all of the CompanyIntellectual Property (i) used or held for use by Aeglea and its Subsidiaries in, or (ii) owned or licensed by Aeglea or its Subsidiaries and otherwise necessary for, the conduct of the business Program and the Exploitation of the Company Product.
(i) None of the Assigned Intellectual Property has ever been found invalid or unenforceable, in whole or in part, for any reason in any administrative, arbitration, judicial or other Legal Proceeding (other than in proceedings before a patent office in connection with the prosecution of any Assigned Patent) or been the subject of a final and nonappealable finding of unpatentability, (ii) Aeglea has not received any written notice from any other Person that any issued Assigned Patent is not valid and enforceable, (iii) all Assigned Intellectual Property is, to Aeglea’s Knowledge, valid, enforceable, in full force and effect and subsisting, (iv) all registration, maintenance and renewal fees applicable to the Registered IP that are currently due have been paid and all documents and certificates related to such items that are currently required to be filed have been filed with the relevant Governmental Authority or other authorities in the applicable jurisdictions for the purposes of maintaining such items, (v) effective written assignments constituting an unbroken, complete chain-of-title from each original owner or inventor to Aeglea or its applicable Subsidiary have been obtained with respect to all the Registered IP and have been duly recorded with the appropriate Governmental Authorities and (vi) to the Aeglea’s Knowledge, there is no relevant prior art revealed, disclosed or discovered after the issuance of any Assigned Patent that was not cited during the prosecution of such Assigned Patent.
(f) There is no Legal Proceeding pending against, or, to Aeglea’s Knowledge, threatened against, Aeglea or any of its Subsidiaries as currently conducted does or any of their respective present or, to Aeglea’s Knowledge, former, officers, directors or employees (i) based upon, or challenging or seeking to deny or restrict, the rights of Aeglea or any of its Subsidiaries in any of the Assigned Intellectual Property or, to Aeglea’s Knowledge, Licensed Intellectual Property or (ii) alleging that any Assigned Intellectual Property or, to Aeglea’s Knowledge, Licensed Intellectual Property is invalid or unenforceable (including in any reexamination, reissue, opposition proceeding, or any similar proceeding).
(g) The Exploitation of the Product and the conduct of the Program has not infringeinfringed upon (including inducing or contributing to the infringement of), misappropriated or otherwise violated, and, to Aeglea’s Knowledge, will not infringe upon (including inducing or contributing to the infringement of), misappropriate or otherwise violate 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 Third Party. There is no material claim Legal Proceeding pending against, or, to the Knowledge of the CompanyAeglea’s Knowledge, threatened against the Company against, Aeglea or any of its Subsidiaries or any of their respective present or, to Aeglea’s Knowledge, former, officers, directors or employees alleging that the Company or use of any of the Assigned Intellectual Property or Licensed Intellectual Property or the conduct of the Program conflicts with, misappropriates, infringes or otherwise violates any Intellectual Property of any Person.
(h) None of Aeglea nor its Subsidiaries have respective agents and advisors, has (i) put a Third Party on notice of actual or potential infringement, misappropriation or other violation of any of the Assigned Intellectual Property or (ii) initiated any enforcement action with respect to any of the Assigned Intellectual Property, and, to Aeglea’s Knowledge, no Person has infringed, misappropriated or otherwise violated any valid and enforceable Assigned 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 Aeglea’s or its Subsidiaries and applicable Subsidiary’s rights under any Licensed Intellectual Property.
(Bi) 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 Aeglea has taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of all Assigned Intellectual Property owned by the Company or its Subsidiariesand Licensed Intellectual Property, the value of which to the Company and its Subsidiaries Aeglea is contingent upon maintaining the confidentiality thereof, and no such Intellectual Property has been disclosed other than pursuant to written confidentiality agreements or enforceable confidentiality obligations.
(cj) Except Aeglea and its Subsidiaries have appropriate procedures in place designed to provide that all Intellectual Property related to the Product or Program and conceived or developed by employees performing their duties for Aeglea and its Subsidiaries, and by Third Parties performing research and development for Aeglea or its Subsidiaries, has been assigned to Aeglea or its Subsidiaries, as would not reasonably be expected applicable, and to havethe extent that any such Intellectual Property has been developed or created by any Third Party (including any current or former employee), individually Aeglea or in the aggregate, a Company Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any one of its Subsidiaries: Subsidiaries has a written agreement with such Third Party with respect thereto, which provides that Aeglea or its applicable Subsidiary either (i) are has obtained ownership of and is the sole and exclusive owner of or (ii) has obtained a valid and unrestricted right to exploit, sufficient for the current needs conduct of the businesses of the Company and its Subsidiaries; (ii) business, as currently conducted or proposed to the Knowledge of the Companybe conducted, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious codesuch Intellectual Property.
(dk) Except as would not reasonably be expected Schedule 4.11(k) contains a true and complete list of any and all Assigned Intellectual Property that was created, developed or reduced to have, individually or in the aggregate, a Company Material Adverse Effectpractice, or as set forth on Section 4.16(d) of the Company Disclosure Scheduleis being created, developed or reduced to practice, (i) the Company pursuant to, or in connection with, any contract with any Governmental Authority or Governmental Authority-affiliated entity, or university, college or other educational institution, or (ii) using any funding or facilities of any Governmental Authority or Governmental Authority-affiliated entity, or university, college or other educational institution (collectively, “Government Funded IP”). Except as set forth in Schedule 4.11(k), Aeglea and its Subsidiaries have nottaken any and all actions necessary to obtain, since January 1secure, 2020maintain, experienced any unauthorized access enforce and protect Aeglea’s or its applicable Subsidiary’s right, title and interest in, to or other breach of security with respect to any IT Assetsand under all Government Funded IP, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) (A) the Company and Aeglea and its Subsidiaries have complied with any and all Applicable Laws Intellectual Property disclosure and/or licensing obligations under any applicable contract referenced in clause (i) above.
(l) In connection with the conduct of the Program, Aeglea and each of its Subsidiaries have complied in all material respects with their own respective privacy policies (“Privacy Policies”i) relating all applicable Laws, rules and regulations pertaining to data privacy, data security, security breach notification and the collection, storagestorage and use of personally identifiable information and user information gathered or accessed in the course of the conduct of the Program, use(ii) all rules, processing, disclosure policies and transfer procedures established by any of any Personal Information Aeglea or its Subsidiaries with respect to the foregoing and (Biii) neither all restrictions and requirements with respect to the Company nor foregoing contained in any contractual obligations to which Aeglea or any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Companybound. To Aeglea’s Knowledge, there are has been no facts (A) losses or circumstances that would give rise to any such complaints; and (iii) thefts of, or security breaches relating to, personally identifiable information in the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession possession, custody or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company of Aeglea or any of its SubsidiariesSubsidiaries and held in connection with the conduct of the Program; (B) unauthorized access or unauthorized use of any such personally identifiable information; or (C) improper disclosure of any such personally identifiable information by Aeglea or any of its Subsidiaries or any Person acting on their behalf. No Legal Proceedings are pending or, to Aeglea’s Knowledge, threatened against Aeglea or any of its Subsidiaries by any Person alleging a violation of any Person’s privacy, personal or confidentiality rights under any such applicable Laws, contractual obligations, or the rules, policies or procedures established by any of Aeglea or its Subsidiaries relating to privacy, data protection and the collection and use of personal information gathered or accessed in the conduct of the Program.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Spyre Therapeutics, Inc.), Asset Purchase Agreement (Aeglea BioTherapeutics, Inc.)
Intellectual Property; Data Privacy and Security. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Each item of material Company Material Adverse Effect, (i) the Company or its Subsidiaries own all right, title and interest in all Intellectual Property that is registered or subject to pending applications for registration owned by the Company or its Subsidiaries a Company Subsidiary (the “Owned Company Registered 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 is subsisting and, to the Knowledge of the Company, valid and enforceable.
(b) Except as would not reasonably be expected to have, and neither the Company nor any of the Company Subsidiaries has received any written notice or claim challenging the ownership, validity, registrability or enforceability of such Company Registered Intellectual Property or disputing the use or alleging any misuse of such Company Registered Intellectual Property, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Company Subsidiaries own all right, title and interest in and to, free and clear of all Liens other than Permitted Liens, or have a valid and enforceable right to use, all Company Intellectual Property, and (ii) the Company Intellectual Property constitutes all of the Intellectual Property necessary to enable the Company and the Company Subsidiaries to conduct their businesses as set forth on Section 4.16(bsuch businesses are currently being conducted.
(c) (i) To the Knowledge of the Company, no Company Intellectual Property is being infringed, misappropriated or otherwise violated by any third party and (ii) neither the Company nor any of the Company Disclosure Schedule: Subsidiaries is infringing, misappropriating or otherwise violating any Intellectual Property owned by any third party except, in each case with respect to clauses (i) and (ii) as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. There are no claims against the Company or any of the Company Subsidiaries presently pending or, to the Knowledge of the Company, threatened, alleging infringement, misappropriation or other violation of any third-party Intellectual Property, except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(d) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Knowledge of the Company, the conduct of the business there have been no breaches of the Company and its Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any valid and enforceable Intellectual Property rights Information Systems that resulted in a disclosure of any Person; (ii) to the Knowledge proprietary information 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 Subsidiaries, or of any personally identifiable information in the possession of the Company or any of its the Company Subsidiaries, and (ii) the Company and the Company 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 have implemented reasonable backup, access controls, logging, security, breach and loss detection, and loss and disaster recovery measures and technology with respect to any outstanding judgment, injunction, order or decree restricting the use thereof by the Company or its Subsidiaries Information Systems and (B) there are no pending or, to in compliance with all applicable Laws regarding the Knowledge security 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 thereofInformation Systems.
(ce) Except as would not reasonably be expected to haveas, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any of its Subsidiaries: (i) are sufficient for the current needs of the businesses of the Company and its Subsidiaries; (ii) to the Knowledge of the Company, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious code.
(d) 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(d) of the Company Disclosure Schedule, (i) the Company and its Subsidiaries have not, since January 1, 20202017, experienced any unauthorized access to or other breach of security with respect to any IT Assets, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) (A) the Company and its the Company Subsidiaries have complied with all Applicable Laws and with their own respective privacy policies (“A) applicable Privacy Policies”) relating to the collection, storage, use, processing, disclosure and transfer of any Personal Information and (B) neither the Company nor any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Company, there are no facts or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company or any of its Subsidiaries.Laws,
Appears in 1 contract
Intellectual Property; Data Privacy and Security. (a) Except as would not reasonably be expected to haveSchedule 4.11(a) contains a true and complete list of each of the issuances, individually registrations and applications for issuance or registration included in the aggregateAssigned Intellectual Property, a Company Material Adverse Effectspecifying as to each such item, as applicable (i) the Company or its Subsidiaries own all rightowner of such item, 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) the title of such item, (iii) each jurisdiction in which such item is issued or registered or in which any application for issuance or registration has been filed, (iv) the respective issuance, registration, or application number of such item and (v) the date of application and issuance or registration of such item (all material items of Owned such Assigned Intellectual Property that are registered or otherwise filed with required to be listed on Schedule 4.11(a), 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“Registered IP”).
(b) Aeglea or one of its Subsidiaries is the sole and exclusive owner of the Assigned Intellectual Property.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, or as set forth in Schedule 4.11(c), there exist no restrictions on Section 4.16(b) the disclosure, use, license or transfer of the Company Disclosure Schedule: Assigned Intellectual Property. The consummation of the transactions contemplated by this Agreement will not (i) alter, encumber, impair or extinguish any Assigned Intellectual Property or Aeglea’s or its applicable Subsidiary’s rights under any Intellectual Property licensed to Aeglea or its Subsidiaries pursuant to an Assigned Contract (“Licensed Intellectual Property”); or (ii) impair the Knowledge right of Immedica or any of its Affiliates to develop, use, sell, license or otherwise dispose of, or to bring any action for the infringement, misappropriation or other violation of, any Assigned Intellectual Property.
(d) The Assigned Intellectual Property (including the Specified Patents and CPRIT Technology), Licensed Intellectual Property and the ADA Assays constitute all of the CompanyIntellectual Property (i) used or held for use by Aeglea and its Subsidiaries in, or (ii) owned or licensed by Aeglea or its Subsidiaries and otherwise necessary for, the conduct of the business Program and the Exploitation of the Company Product.
(i) None of the Assigned Intellectual Property has ever been found invalid or unenforceable, in whole or in part, for any reason in any administrative, arbitration, judicial or other Legal Proceeding (other than in proceedings before a patent office in connection with the prosecution of any Assigned Patent) or been the subject of a final and nonappealable finding of unpatentability, (ii) Aeglea has not received any written notice from any other Person that any issued Assigned Patent is not valid and enforceable, (iii) all Assigned Intellectual Property is, to Aeglea’s Knowledge, valid, enforceable, in full force and effect and subsisting, (iv) all registration, maintenance and renewal fees applicable to the Registered IP that are currently due have been paid and all documents and certificates related to such items that are currently required to be filed have been filed with the relevant Governmental Authority or other authorities in the applicable jurisdictions for the purposes of maintaining such items, (v) effective written assignments constituting an unbroken, complete chain-of-title from each original owner or inventor to Aeglea or its applicable Subsidiary have been obtained with respect to all the Registered IP and have been duly recorded with the appropriate Governmental Authorities and (vi) to the Aeglea’s Knowledge, there is no relevant prior art revealed, disclosed or discovered after the issuance of any Assigned Patent that was not cited during the prosecution of such Assigned Patent.
(f) There is no Legal Proceeding pending against, or, to Aeglea’s Knowledge, threatened against, Aeglea or any of its Subsidiaries as currently conducted does or any of their respective present or, to Aeglea’s Knowledge, former, officers, directors or employees (i) based upon, or challenging or seeking to deny or restrict, the rights of Aeglea or any of its Subsidiaries in any of the Assigned Intellectual Property or, to Aeglea’s Knowledge, Licensed Intellectual Property or (ii) alleging that any Assigned Intellectual Property or, to Aeglea’s Knowledge, Licensed Intellectual Property is invalid or unenforceable (including in any reexamination, reissue, opposition proceeding, or any similar proceeding).
(g) The Exploitation of the Product and the conduct of the Program has not infringeinfringed upon (including inducing or contributing to the infringement of), misappropriated or otherwise violated, and, to Aeglea’s Knowledge, will not infringe upon (including inducing or contributing to the infringement of), misappropriate or otherwise violate 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 Third Party. There is no material claim Legal Proceeding pending against, or, to the Knowledge of the CompanyAeglea’s Knowledge, threatened against the Company against, Aeglea or any of its Subsidiaries or any of their respective present or, to Aeglea’s Knowledge, former, officers, directors or employees alleging that the Company or use of any of the Assigned Intellectual Property or Licensed Intellectual Property or the conduct of the Program conflicts with, misappropriates, infringes or otherwise violates any Intellectual Property of any Person.
(h) None of Aeglea nor its Subsidiaries have respective agents and advisors, has (i) put a Third Party on notice of actual or potential infringement, misappropriation or other violation of any of the Assigned Intellectual Property or (ii) initiated any enforcement action with respect to any of the Assigned Intellectual Property, and, to Aeglea’s Knowledge, no Person has infringed, misappropriated or otherwise violated any valid and enforceable Assigned 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 Aeglea’s or its Subsidiaries and applicable Subsidiary’s rights under any Licensed Intellectual Property.
(Bi) 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 Aeglea has taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of all Assigned Intellectual Property owned by the Company or its Subsidiariesand Licensed Intellectual Property, the value of which to the Company and its Subsidiaries Aeglea is contingent upon maintaining the confidentiality thereof, and no such Intellectual Property has been disclosed other than pursuant to written confidentiality agreements or enforceable confidentiality obligations.
(cj) Except Aeglea and its Subsidiaries have appropriate procedures in place designed to provide that all Intellectual Property related to the Product or Program and conceived or developed by employees performing their duties for Aeglea and its Subsidiaries, and by Third Parties performing research and development for Aeglea or its Subsidiaries, has been assigned to Aeglea or its Subsidiaries, as would not reasonably be expected applicable, and to havethe extent that any such Intellectual Property has been developed or created by any Third Party (including any current or former employee), individually Aeglea or in the aggregate, a Company Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any one of its Subsidiaries: Subsidiaries has a written agreement with such Third Party with respect thereto, which provides that Aeglea or its applicable Subsidiary either (i) are has obtained ownership of and is the sole and exclusive owner of or (ii) has obtained a valid and unrestricted right to exploit, sufficient for the current needs conduct of the businesses of the Company and its Subsidiaries; (ii) business, as currently conducted or proposed to the Knowledge of the Companybe conducted, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious codesuch Intellectual Property.
(dk) Except as would not reasonably be expected Schedule 4.11(k) contains a true and complete list of any and all Assigned Intellectual Property that was created, developed or reduced to have, individually or in the aggregate, a Company Material Adverse Effectpractice, or as set forth on Section 4.16(d) of the Company Disclosure Scheduleis being created, developed or reduced to practice, (i) the Company pursuant to, or in connection with, any contract with any Governmental Authority or Governmental Authority-affiliated entity, or university, college or other educational institution, or (ii) using any funding or facilities of any Governmental Authority or Governmental Authority-affiliated entity, or university, college or other educational institution (collectively, “Government Funded IP”). Except as set forth in Schedule 4.11(k), Aeglea and its Subsidiaries have nottaken any and all actions necessary to obtain, since January 1secure, 2020maintain, experienced any unauthorized access enforce and protect Aeglea’s or its applicable Subsidiary’s right, title and interest in, to or other breach of security with respect to any IT Assetsand under all Government Funded IP, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) (A) the Company and Aeglea and its Subsidiaries have complied with any and all Applicable Laws Intellectual Property disclosure and/or licensing obligations under any applicable contract referenced in clause (i) above.
(l) In connection with the conduct of the Program, Aeglea and each of its Subsidiaries have complied in all material respects with their own respective privacy policies (“Privacy Policies”i) relating all applicable Laws, rules and regulations pertaining to data privacy, data security, security breach notification and the collection, storagestorage and use of personally identifiable information and user information gathered or accessed in the course of the conduct of the Program, use(ii) all rules, processing, disclosure policies and transfer procedures established by any of any Personal Information Aeglea or its Subsidiaries with respect to the foregoing and (Biii) neither all restrictions and requirements with respect to the Company nor foregoing contained in any contractual obligations to which Aeglea or any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Companybound. To Aeglea’s Knowledge, there are has been no facts (A) losses or circumstances that would give rise to any such complaints; and (iii) thefts of, or security breaches relating to, personally identifiable information in the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession possession, custody or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company of Aeglea or any of its SubsidiariesSubsidiaries and held in connection with the conduct of the Program; (B) unauthorized access or unauthorized use of any such personally identifiable information; or (C) improper disclosure of any such personally identifiable information by Aeglea or any of its Subsidiaries or any Person acting on their behalf. No Legal Proceedings are pending or, to Aeglea’s Knowledge, threatened against Aeglea or any of its Subsidiaries by any Person alleging a violation of any Person’s privacy, personal or confidentiality rights under any such applicable Laws, contractual obligations, or the rules, policies or procedures established by any of Aeglea or its Subsidiaries relating to privacy, data protection and the collection and use of personal information gathered or accessed in the conduct of the Program.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aeglea BioTherapeutics, Inc.)
Intellectual Property; Data Privacy and Security. (a) Except as would not reasonably be expected Each item of material Parent Intellectual Property that is registered or subject to havepending applications for registration owned by Parent or a Parent Subsidiary (“Parent Registered Intellectual Property”) is subsisting and, to the Knowledge of Parent, valid and enforceable, and neither Parent nor any of the Parent Subsidiaries has received any written notice or claim challenging the ownership, validity, registrability or enforceability of such Parent Registered Intellectual Property or disputing the use or alleging any misuse of such Parent Registered Intellectual Property, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect.
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, (i) Parent and the Company or its Parent Subsidiaries own all right, title and interest in all Intellectual Property owned by the Company or its Subsidiaries (the “Owned Intellectual Property”) and to, free and clear of all Liens, Liens other than Permitted Liens Liens, or have a valid and enforceable right to use, all Parent Intellectual Property, and (ii) all material items of Owned the Parent Intellectual Property that constitutes all of the Intellectual Property necessary to enable Parent and the Parent Subsidiaries to conduct their businesses as such businesses 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 currently being conducted.
(c) (i) To the Knowledge of Parent, no Parent Intellectual Property is being infringed, misappropriated or otherwise violated by any third party and (ii) neither Parent nor any of the CompanyParent Subsidiaries is infringing, valid misappropriating or otherwise violating any Intellectual Property owned by any third party except, in each case with respect to clauses (i) and enforceable.
(bii) Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Company Parent Material Adverse Effect. There are no claims against Parent or any of the Parent Subsidiaries presently pending or, to the Knowledge of Parent, threatened, alleging infringement, misappropriation or other violation of any third-party Intellectual Property, except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(d) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, or as set forth on Section 4.16(b) of the Company Disclosure Schedule: (i) to the Knowledge of the CompanyParent, the conduct there have been no breaches of the business Parent Information Systems that resulted in a disclosure of any proprietary information of Parent or any of the Company and its Subsidiaries as currently conducted does not infringeParent Subsidiaries, misappropriate or otherwise violate any valid and enforceable Intellectual Property rights of any Person; personally identifiable information in the possession of Parent or any of the Parent Subsidiaries, and (ii) to Parent and 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 Parent 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 have implemented reasonable backup, access controls, logging, security, breach and loss detection, and loss and disaster recovery measures and technology with respect to the Owned Intellectual Property is subject to any outstanding judgment, injunction, order or decree restricting the use thereof by the Company or its Subsidiaries Parent Information Systems and (B) there are no pending or, to in compliance with all applicable Laws regarding the Knowledge security 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 thereofParent Information Systems.
(ce) Except as would not reasonably be expected to haveas, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any of its Subsidiaries: (i) are sufficient for since January 1, 2017, Parent and the current needs Parent Subsidiaries have complied with (A) applicable Privacy Laws, (B) any privacy choices (including opt-out preferences) communicated to Parent and the Parent Subsidiaries and (C) any obligations relating to Personal Data contained in any written agreements, including contractual commitments, terms of the businesses of the Company use and its Subsidiaries; privacy policies, (ii) since January 1, 2017, Parent and the Parent Subsidiaries have taken commercially reasonable measures to the Knowledge of the Companyensure that Personal Data collected by or on their behalf is protected against loss, have not malfunctioned damage, and unauthorized access, use or failed within the past three (3) years and modification, (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious code.
(d) 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(d) of the Company Disclosure Schedule, (i) the Company and its Subsidiaries have notParent, since January 1, 20202017, experienced any unauthorized access to or other breach of security with respect to any IT Assets, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) there has been no (A) the Company and its Subsidiaries have complied with all Applicable Laws and with their own respective privacy policies (“Privacy Policies”) relating unauthorized disclosure of or access to the collection, storage, use, processing, disclosure and transfer of any Personal Information and Data or (B) neither action or circumstance requiring Parent or the Company Parent Subsidiaries to notify a Governmental Entity or other Person of a data security breach or violation of any Privacy Laws nor has Parent or the Parent Subsidiaries made any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collectionsuch notification, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, and (iv) to the Knowledge of the CompanyParent, there are no facts Person (including any Governmental Entity) has commenced any action with respect to loss, damage, or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect unauthorized access, use or modification of any Personal Information under their possession Data of, by or control from any use or access that would violate Applicable Law, on behalf of Parent and the Privacy Policies or any contractual obligations applicable to the Company or any of its Parent Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Gannett Co., Inc.)
Intellectual Property; Data Privacy and Security. (a) Except as would not reasonably be expected Each item of material Parent Intellectual Property that is registered or subject to havepending applications for registration owned by Parent or a Parent Subsidiary (“Parent Registered Intellectual Property”) is subsisting and, to the Knowledge of Parent, valid and enforceable, and neither Parent nor any of the Parent Subsidiaries has received any written notice or claim challenging the ownership, validity, registrability or enforceability of such Parent Registered Intellectual Property or disputing the use or alleging any misuse of such Parent Registered Intellectual Property, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect.
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, (i) Parent and the Company or its Parent Subsidiaries own all right, title and interest in all Intellectual Property owned by the Company or its Subsidiaries (the “Owned Intellectual Property”) and to, free and clear of all Liens, Liens other than Permitted Liens Liens, or have a valid and enforceable right to use, all Parent Intellectual Property, and (ii) all material items of Owned the Parent Intellectual Property that constitutes all of the Intellectual Property necessary to enable Parent and the Parent Subsidiaries to conduct their businesses as such businesses 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 currently being conducted.
(c) (i) To the Knowledge of Parent, no Parent Intellectual Property is being infringed, misappropriated or otherwise violated by any third party and (ii) neither Parent nor any of the CompanyParent Subsidiaries is infringing, valid misappropriating or otherwise violating any Intellectual Property owned by any third party except, in each case with respect to clauses (i) and enforceable.
(bii) Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Company Parent Material Adverse Effect. There are no claims against Parent or any of the Parent Subsidiaries presently pending or, to the Knowledge of Parent, threatened, alleging infringement, misappropriation or other violation of any third-party Intellectual Property, except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(d) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, or as set forth on Section 4.16(b) of the Company Disclosure Schedule: (i) to the Knowledge of the CompanyParent, the conduct there have been no breaches of the business Parent Information Systems that resulted in a disclosure of any proprietary information of Parent or any of the Company and its Subsidiaries as currently conducted does not infringeParent Subsidiaries, misappropriate or otherwise violate any valid and enforceable Intellectual Property rights of any Person; personally identifiable information in the possession of Parent or any of the Parent Subsidiaries, and (ii) to Parent and 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 Parent 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 have implemented reasonable backup, access controls, logging, security, breach and loss detection, and loss and disaster recovery measures and technology with respect to the Owned Intellectual Property is subject to any outstanding judgment, injunction, order or decree restricting the use thereof by the Company or its Subsidiaries Parent Information Systems and (B) there are no pending or, to in compliance with all applicable Laws regarding the Knowledge security 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 thereofParent Information Systems.
(ce) Except as would not reasonably be expected to haveas, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any of its Subsidiaries: (i) are sufficient for since January 1, 2017, Parent and the current needs Parent Subsidiaries have complied with (A) applicable Privacy Laws, (B) any privacy choices (including opt-out preferences) communicated to Parent and the Parent Subsidiaries and (C) any obligations relating to Personal Data contained in any written agreements, including contractual commitments, terms of the businesses of the Company use and its Subsidiaries; privacy policies, (ii) since January 1, 2017, Parent and the Parent Subsidiaries have taken commercially reasonable measures to the Knowledge of the Companyensure that Personal Data collected by or on their behalf is protected against loss, have not malfunctioned damage, and unauthorized access, use or failed within the past three (3) years and modification, (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious code.
(d) 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(d) of the Company Disclosure Schedule, (i) the Company and its Subsidiaries have notParent, since January 1, 20202017, experienced any unauthorized access to or other breach of security with respect to any IT Assets, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) there has been no (A) the Company and its Subsidiaries have complied with all Applicable Laws and with their own respective privacy policies (“Privacy Policies”) relating to the collection, storage, use, processing, unauthorized disclosure and transfer of any Personal Information and (B) neither the Company nor any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Company, there are no facts or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company or any of its Subsidiaries.Personal Data or
Appears in 1 contract
Intellectual Property; Data Privacy and Security. (a) All registrations, issuances and applications for registration or issuance of any Owned Intellectual Property filed with, applied for or issued by any Governmental Authority (“Registered Intellectual Property”) are (i) set forth in Section 3.19(a) of the Seller Disclosure Schedule; and (ii) subsisting, valid and in force (except with respect to applications included in the Registered Intellectual Property). Neither Seller nor any of its Subsidiaries has misrepresented, or failed to disclose, any facts or circumstances in any application for any Registered Intellectual Property or in the prosecution of such application that would constitute fraud or a misrepresentation with respect to such application in any material respect. Owned Intellectual Property and the Intellectual Property licensed to the Seller and its Subsidiaries pursuant to the Exclusive Contracts and Business Shared Contracts included in the Business Assets (“Licensed Intellectual Property”) and the Software License Agreement constitute all of the material Intellectual Property used in and necessary to enable the conduct of the Business as currently conducted.
(b) Except as set forth in Section 3.19(b)(i) of the Seller Disclosure Schedule, Seller or one of its Subsidiaries exclusively owns, free and clear of any Liens (other than Permitted Liens) all Owned Intellectual Property. The Owned Intellectual Property is, and after the Closing, will be, fully transferable and licensable by the Company without restriction and without payment of any kind to any Person. Subject to the terms of this Agreement, Seller or one of its Subsidiaries has the sole and exclusive right to bring an Action against a third party for past, present or future Infringement of the Owned Intellectual Property and to retain for itself any damages recovered in any such Action. Neither Seller nor any of its Subsidiaries has (i) transferred ownership of, or granted any exclusive license with respect to, any Owned Intellectual Property to any other Person, or (ii) done any act where such action would cause the rights of Seller or its Subsidiaries in any Owned Intellectual Property to enter into the public domain. Except as set forth in Section 3.19(b)(ii) of the Seller Disclosure Schedule, no third party that has exclusively licensed any Licensed Intellectual Property to Seller or any of its Subsidiaries with respect to the Business has retained ownership of or license rights under any Intellectual Property in any modifications, improvements or derivative works made solely or jointly by Seller or any of its Subsidiaries which is material to the Business.
(c) To the Knowledge of the Seller or any of its Subsidiaries, except with respect to Intellectual Property owned or controlled by a Person and licensed under a Contract included in the Business Assets (including any covenant not reasonably be expected to havesue) and any other Intellectual Property rights owned or controlled by a Person related to biosimilar products and product candidates of ranibizumab, whether or not such product or product candidate is publicly known as of the date hereof, the operation of the Business as conducted by the Seller or any of its Subsidiaries as of the date hereof is not Infringing or otherwise violating any issued Patents or any other Intellectual Property Rights of any Person, in any material respect. During the past three (3) years, except as set forth in Section 3.19(c) of the Seller Disclosure Schedule, neither Seller nor any of its Affiliates has received written notice from any Person claiming that the operation of the Business Infringes or has Infringed any Intellectual Property of any Person.
(d) Except as set forth in Section 3.19(d) of the Seller Disclosure Schedule or as would not, individually or in the aggregate, have or reasonably be expected to be material to the Company or the Business taken as a Company Material Adverse Effectwhole, neither Seller nor any of its Subsidiaries has (i) the Company made any written claim to any Person alleging that any Person has Infringed or its Subsidiaries own all right, title and interest in all otherwise violated any Owned Intellectual Property owned by the or Company Software, or its Subsidiaries (the “Owned Intellectual Property”) free and clear of all Liens, other than Permitted Liens and (ii) all material items received any unresolved written claim from any Person alleging that the operation of the Business has Infringed or otherwise violated any Intellectual Property of such Person or challenging the legality, validity, enforceability or ownership of any 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, (nor to the Seller’s Knowledge of the Company, valid and enforceableis there any threat thereof).
(be) Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to be material to the Company or the Business taken as a Company Material Adverse Effectwhole, (i) no Owned Intellectual Property is subject to any outstanding Governmental Order and (ii) none of the execution and delivery of this Agreement and the other Transaction Documents, or the consummation of the transactions contemplated hereby and thereby, do or will contravene, conflict with or impair the Seller’s or any of its Subsidiaries’ rights in any Owned Intellectual Property or Licensed Intellectual Property.
(f) Except as set forth on in Section 4.16(b3.19(f) of the Company Seller Disclosure Schedule: , neither this Agreement nor any of the transactions contemplated by the Agreement shall cause the Company or Buyer or its Affiliates to (i) grant 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 third party any right to any Owned Intellectual Property rights of any Person; or Company Software, (ii) to be bound by, or subject to, any non-compete, non-solicit or other restriction on the Knowledge operation or scope of the CompanyBusiness, or (iii) be obligated to pay any royalties or other fees or consideration with respect to Intellectual Property of any third party in excess of those payable by Seller or any of its Subsidiaries pursuant to an Exclusive Contract or a Business Shared Contract included in the Business Assets in the absence of this Agreement or the transactions contemplated by this Agreement.
(g) To Seller’s Knowledge, no Person is infringing, misappropriating or otherwise violating the any Owned Intellectual Property rights owned by or Company Software, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or its Subsidiaries; the Business taken as a whole.
(iiih) there is no material claim pending or, to the Knowledge [***].
(i) All current and former employees and independent contractors of the Company, threatened against the Company Seller or any of its Subsidiaries alleging who have contributed to the creation or development of any material Owned Intellectual Property or Company Software have entered into agreements that the Company assign to Seller or any of its Subsidiaries have infringedall right, misappropriated or otherwise violated any valid title, and enforceable interest to such Intellectual Property, except where such Intellectual Property would vest in Seller or such Subsidiary by operation of Law. Without limiting the foregoing, no current or former employee or independent contractor owns or has any right, claim, interest or option, including the right to further remuneration or consideration or to assert any rights, including moral rights (to the extent permitted by Law), with respect to the Product, Company Software, or any material Owned Intellectual Property nor has any such Person made any assertions with respect to any alleged ownership or any such right, claim, interest or option, nor threatened any such assertion. Neither this Agreement nor any of the transactions contemplated by this Agreement shall provide any Person; such Person with any such right, claim or option.
(ivj) No Governmental Authority, university, college, other educational institution, multi-national, bi-national or international organization or research center has any claim or right (including license rights) to, or has provided or is providing any grants or other funding (including Tax incentives or relief), facilities or resources used in the development of, any material Owned Intellectual Property.
(k) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or the Business taken as a whole:
(i) to Seller’s Knowledge, no Open Source Software is contained in, distributed with, or linked to any Company Software in a manner that would require as a condition of the use, modification, hosting, or distribution of such Open Source Software that such Company Software be (A) none of the Owned Intellectual Property is subject to any outstanding judgmentdisclosed or distributed in source code form, injunction, order or decree restricting the use thereof by the Company or its Subsidiaries and (B) there are licensed for the purpose of making derivative works, or (C) redistributed, hosted or otherwise made available at no pending or, or nominal charge or impose any restriction on the consideration to be charged for the Knowledge of the Company, threatened claims distribution thereof;
(ii) with respect to any Open Source Software that is or allegations seeking to challenge the validity, enforceability or ownership of the Company’s has been used by Seller or any of its Subsidiaries in the operation of the Business, Seller or its applicable Subsidiary is, and has at all times been, in compliance with all applicable licenses with respect thereto;
(iii) neither Seller nor any of its Subsidiaries’ rights , nor any other Person acting on their behalf, has disclosed, delivered or licensed to any Person, agreed to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of, any source code for any Software included in any the Owned Intellectual Property, except for disclosures to employees or contractors under binding written agreements that prohibit use or disclosure except in the performance of services to Seller or its Subsidiaries.
(l) Except as would not, individually or in the aggregate, reasonably be expected to be material Intellectual Property owned by to the Company or its Subsidiaries; the Business taken as a whole, the IT Systems are (i) in sufficient operating condition to perform all information technology operations necessary to operate the Business as currently operated, and (vii) to Seller’s Knowledge, do not contain any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware” or “adware” (as such terms are commonly understood in the Company software industry) (together, “Malicious Code”). During the past three (3) years, to the Seller’s Knowledge, there has not been any outage or disruption of the IT Systems, and Seller and its Subsidiaries have taken reasonable steps in accordance with normal industry practice designed to maintain prevent the confidentiality introduction of all Intellectual Property owned by any Malicious Code into the Company or its SubsidiariesIT Systems, the value of which to the Company and its Subsidiaries is contingent upon maintaining the confidentiality thereof.
(c) Except except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by reasonably be expected to be material to the Company or any of its Subsidiaries: (i) are sufficient for the current needs of the businesses of the Company and its Subsidiaries; (ii) to the Knowledge of the Company, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious codeBusiness taken as a whole.
(dm) Except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, or as set forth on Section 4.16(d) of reasonably be expected to be material to the Company Disclosure Scheduleor the Business taken as a whole, during the past three (3) years, in connection with the Business, Seller and Subsidiaries (i) the Company and have been in compliance with all applicable Data Protection Requirements, (ii) have taken commercially reasonable steps designed to ensure that all Personal Information Processed by Seller or its Subsidiaries is protected against loss and unauthorized access, use, modification or disclosure, (iii) to the Seller’s Knowledge, have not, since January 1, 2020, not experienced any loss or unauthorized access to access, use, modification or other breach disclosure of security with respect to any IT Assets, Personal Information or trade secrets owned, used or held for use Processed by the Company Seller or any of its Subsidiaries; , or any incidents regarding the same that required notification of individuals, law enforcement, or any Governmental Authority under any applicable Data Protection Law, and (iiiv) (A) the Company and have not received written communication from any Governmental Authority or data subject that alleges that Seller or any of its Subsidiaries have complied is not in compliance with all Applicable Laws and any Data Protection Laws.
(n) During the past three (3) years, in connection with their own respective privacy policies (“Privacy Policies”) relating to the collectionBusiness, storage, use, processing, disclosure and transfer of any Personal Information and (B) neither the Company Seller nor any of its Subsidiaries has have been involved in any Actions involving a breach or received a complaint from written notice of any Governmental Authority alleged breach of Data Protection Laws or any other third party regarding its collectionPrivacy Policies, storageexcept as would not, useindividually or in the aggregate, processing, disclosure or transfer of Personal Information that is pending or unresolved and, reasonably be expected to the Knowledge of the Company, there are no facts or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable be material to the Company or any of the Business, taken as a whole.
(o) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or the Business taken as a whole, during the past three (3) years, the Company has established and maintains industry-standard controls and measures designed to evaluate, monitor and ensure its Subsidiariescompliance with all Data Protection Requirements.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Coherus BioSciences, Inc.)
Intellectual Property; Data Privacy and Security. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Each item of material Company Material Adverse Effect, (i) the Company or its Subsidiaries own all right, title and interest in all Intellectual Property that is registered or subject to pending applications for registration owned by the Company or its Subsidiaries a Company Subsidiary (the “Owned Company Registered 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 is subsisting and, to the Knowledge of the Company, valid and enforceable.
(b) Except as would not reasonably be expected to have, and neither the Company nor any of the Company Subsidiaries has received any written notice or claim challenging the ownership, validity, registrability or enforceability of such Company Registered Intellectual Property or disputing the use or alleging any misuse of such Company Registered Intellectual Property, except, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) the Company and the Company Subsidiaries own all right, title and interest in and to, free and clear of all Liens other than Permitted Liens, or have a valid and enforceable right to use, all Company Intellectual Property, and (ii) the Company Intellectual Property constitutes all of the Intellectual Property necessary to enable the Company and the Company Subsidiaries to conduct their businesses as set forth on Section 4.16(bsuch businesses are currently being conducted.
(c) (i) To the Knowledge of the Company, no Company Intellectual Property is being infringed, misappropriated or otherwise violated by any third party and (ii) neither the Company nor any of the Company Disclosure Schedule: Subsidiaries is infringing, misappropriating or otherwise violating any Intellectual Property owned by any third party except, in each case with respect to clauses (i) and (ii) as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. There are no claims against the Company or any of the Company Subsidiaries presently pending or, to the Knowledge of the Company, threatened, alleging infringement, misappropriation or other violation of any third-party Intellectual Property, except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(d) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Knowledge of the Company, the conduct of the business there have been no breaches of the Company and its Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate any valid and enforceable Intellectual Property rights Information Systems that resulted in a disclosure of any Person; proprietary information of the Company or any of the Company Subsidiaries, or of any personally identifiable information in the possession of the Company or any of the Company Subsidiaries, and (ii) the Company and the Company Subsidiaries (A) have implemented reasonable backup, access controls, logging, security, breach and loss detection, and loss and disaster recovery measures and technology with respect to the Company Information Systems and (B) are in compliance with all applicable Laws regarding the security of the Company Information Systems.
(e) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) since January 1, 2017, the Company and the Company Subsidiaries have complied with (A) applicable Privacy Laws, (B) any privacy choices (including opt-out preferences) communicated to the Company and the Company Subsidiaries and (C) any obligations relating to Personal Data contained in any written agreements, including contractual commitments, terms of use and privacy policies, (ii) since January 1, 2017, the Company and the Company Subsidiaries have taken commercially reasonable measures to ensure that Personal Data collected by or on their behalf is protected against loss, damage, and unauthorized access, use or modification, (iii) to the Knowledge of the Company, since January 1, 2017, there has been no (A) unauthorized disclosure of or access to Personal Data or (B) action or circumstance requiring the Company or the Company Subsidiaries to notify a Governmental Entity or other Person of a data security breach or violation of any Privacy Laws nor has the Company or the Company Subsidiaries made any such notification, and (iv) to the Knowledge of the Company, no Person is infringing(including any Governmental Entity) has commenced any action with respect to loss, misappropriating damage, or otherwise violating the Intellectual Property rights owned by the Company unauthorized access, use 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 modification of any Person; (iv) (A) none of the Owned Intellectual Property is subject to any outstanding judgmentPersonal Data of, injunction, order by 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 Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any of its Subsidiaries: (i) are sufficient for the current needs of the businesses behalf of the Company and its Subsidiaries; (ii) to the Knowledge of the Company, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious code.
(d) 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(d) of the Company Disclosure Schedule, (i) the Company and its Subsidiaries have not, since January 1, 2020, experienced any unauthorized access to or other breach of security with respect to any IT Assets, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) (A) the Company and its Subsidiaries have complied with all Applicable Laws and with their own respective privacy policies (“Privacy Policies”) relating to the collection, storage, use, processing, disclosure and transfer of any Personal Information and (B) neither the Company nor any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Company, there are no facts or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Gannett Co., Inc.)
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 Company 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 Material Adverse Effect, or as set forth on Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any of its Subsidiaries: (i) are sufficient for the current needs of the businesses of the Company and its Subsidiaries; (ii) to the Knowledge of the Company, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious code.
(d) 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(d) of the Company Disclosure Schedule, (i) to the Knowledge of the Company, the Company and its Subsidiaries have not, since January 1, 20202018, experienced any unauthorized access to or other breach of security with respect to any IT Assets, Personal Information or trade secrets Assets owned, used or held for use by the Company or any of its Subsidiaries, Personal Information or trade secrets; (ii) (A) the Company and its Subsidiaries have complied with all Applicable Laws and with their own respective privacy policies (“Privacy Policies”) relating to the collection, storage, use, processing, disclosure and transfer of any Personal Information and (B) neither the Company nor any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Company, there are no facts or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company or any of its Subsidiaries.
Appears in 1 contract
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 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 Material Adverse Effect, or as set forth on Section Section 4.16(c) of the Company Disclosure Schedule, the IT Assets owned, used or held for use by the Company or any of its Subsidiaries: (i) are sufficient for the current needs of the businesses of the Company and its Subsidiaries; (ii) to the Knowledge of the Company, have not malfunctioned or failed within the past three (3) years and (iii) to the Knowledge of the Company, are free from any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants, spyware and any other disabling or malicious code.
(d) 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 Section 4.16(d) of the Company Disclosure Schedule, (i) the Company and its Subsidiaries have not, since January 1, 2020, experienced any unauthorized access to or other breach of security with respect to any IT Assets, Personal Information or trade secrets owned, used or held for use by the Company or any of its Subsidiaries; (ii) (A) the Company and its Subsidiaries have complied with all Applicable Laws and with their own respective privacy policies (“Privacy Policies”) relating to the collection, storage, use, processing, disclosure and transfer of any Personal Information and (B) neither the Company nor any of its Subsidiaries has received a complaint from any Governmental Authority or any other third party regarding its collection, storage, use, processing, disclosure or transfer of Personal Information that is pending or unresolved and, to the Knowledge of the Company, there are no facts or circumstances that would give rise to any such complaints; and (iii) the Company and its Subsidiaries have reasonably designed security measures in place to protect any Personal Information under their possession or control from any use or access that would violate Applicable Law, the Privacy Policies or any contractual obligations applicable to the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Sokol David L)
