Intellectual Property; Data Privacy. (a) Each of the Company and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use all Intellectual Property used, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Schedule 3.17(a) of the Seller Disclosure Letter sets forth a true and complete list of the following which are owned or purported to be owned by the Company or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications therefor, and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property. (b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (“Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) to the Knowledge of the Company, all Company Registered IP is subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property. (c) Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the conduct of the business of the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party and (ii) no Legal Action is pending, asserted in writing, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries. (d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain and protect the confidentiality of all Company Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceable. (e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights. (f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation Date, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, (v) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements. (g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) data security, cybersecurity, privacy, and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) of the Seller Disclosure Letter, the Company Entities do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United States.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Recruiter.com Group, Inc.), Stock Purchase Agreement (GoLogiq, Inc.)
Intellectual Property; Data Privacy. (a) Each of the Company and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use all Intellectual Property used, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Schedule Section 3.17(a) of the Seller Company Disclosure Letter sets forth a true and complete list of the following which are owned or purported to be owned by the Company or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications therefor, therefor and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (“Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in part, part or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, enforceability and (ii) to the Knowledge of the Company, all Company Registered IP is subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property.
(c) Except as set forth in Schedule Section 3.17(c) of the Seller Company Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the conduct of the business of the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate, and has not, since the Company Incorporation Date Date, infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party and (ii) no Legal Action is pending, asserted in writing, writing or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain and protect the confidentiality of all Company Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceable.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, databases and systems, information technology equipment, equipment and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), ; (ii) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, ; (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation Date, and to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, Assets or (B) otherwise materially adversely affect the functionality of the IT Assets, ; (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, ; (v) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, ; (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, loss or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, ; and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) data security, cybersecurity, privacy, privacy and (ii) the collection, storage, use, access, disclosure, processing, security, security and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule Section 3.17(g) of the Seller Company Disclosure Letter, the Company Entities and its Subsidiaries do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United States.
Appears in 2 contracts
Samples: Merger Agreement (Bruush Oral Care Inc.), Merger Agreement (Bruush Oral Care Inc.)
Intellectual Property; Data Privacy. (a) Each Section 4.20 of the Company and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use all Intellectual Property used, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Disclosure Schedule 3.17(a) of the Seller Disclosure Letter sets forth a true complete and complete accurate list of the following which are owned or purported to be owned by the Company or any of its Subsidiaries: all (i) patents and patent applications, (ii) registered trademarks trademark registrations, service mark registrations and applications thereforfor the foregoing, (iii) registered copyrights copyright registrations and applications therefor, and (iv) domain name registrations and social media identifiers, in each case, which are owned or purported by the Company to be owned by the Company or a Subsidiary of the Company as of the date hereof ((i) - (iv)collectively, the “Registered Intellectual Property” and, together with all Intellectual Property owned or purported by the Company Registered IPto be owned by the Company or its Subsidiaries, the “Owned Intellectual Property”). Except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by be material to the Company and the consummation by its Subsidiaries, taken as a whole, the Company of the Transactions do not and will not encumber, impair or extinguish any a Subsidiary of the Company owns, or has a valid, subsisting and enforceable license or other right to use, all Intellectual PropertyProperty that is used or held for use in the conduct of the businesses of the Company or any of its Subsidiaries as presently conducted, provided that the foregoing shall not be deemed to be a representation or warranty with respect to the infringement, misappropriation or other violation of the Intellectual Property rights any other Person.
(b) To the Knowledge of the Company, the conduct of the businesses of the Company and each of its Subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate, and the conduct of the businesses of the Company and each of its Subsidiaries during the since December 31, 2021 has not infringed, misappropriated or otherwise violated, any Intellectual Property rights of any Person. As of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened in writing that the Company or any of its Subsidiaries is infringing, misappropriating or otherwise violating the Intellectual Property rights of any Person. To the Knowledge of the Company, no Person is infringing any Owned Intellectual Property. No Registered Intellectual Property is the subject of any opposition, cancellation, inter partes review or similar Action in any jurisdiction. Neither the Company nor any of its Subsidiaries is subject to any injunction or other specific judicial, administrative or other administrative order that restricts or impairs its use or distribution of any Owned Intellectual Property. No Person has alleged, in an Action to which the Company or any of its Subsidiaries is a party or, to the Knowledge of the Company, otherwise, that any Owned Intellectual Property is not owned by the Company or its Subsidiaries, is subject to the rights of any third party or that any Owned Intellectual Property is invalid or unenforceable.
(c) Except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, (i) none of be material to the Company Intellectual Property owned or purported to be owned by and its Subsidiaries, taken as a whole, the Company or any one of its Subsidiaries (“Company exclusively owns all right, title and interest in and to the Owned Intellectual Property”) Property free and clear of all Liens (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceabilitythan Permitted Liens), and (ii) to the Knowledge of the Company, all Company Registered IP is such rights are subsisting, in full force and effect, valid and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property.
(cd) Except as set forth in Schedule 3.17(c) The consummation of the Seller Disclosure Lettertransactions contemplated by this Agreement will not alter or impair any rights of the Company or any of its Subsidiaries to any Owned Intellectual Property or, or except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, (i) the conduct of the business of be material to the Company and its Subsidiaries does not infringe uponSubsidiaries, misappropriate or otherwise violatetaken as a whole, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the any other Intellectual Property rights that it uses in the conduct of any Third Party its business.
(e) Each current and (ii) no Legal Action is pendingformer director, asserted in writingofficer, employee, consultant or to the Knowledge contractor of the Company, threatened against the Company or any of its Subsidiaries that has made a material contribution to the conduct creation, invention, modification, or improvement of the business any Owned Intellectual Property for or on behalf of the Company or any of its Subsidiaries infringes uponSubsidiaries, misappropriates in whole or otherwise violates the in part, has signed a valid and enforceable written Contract pursuant to which all of their Intellectual Property and other rights in and to such contributions have been irrevocably assigned to the Company or one of any Third Party. To its Subsidiaries, except to the extent such assignment occurred by operation of law, and, to the Knowledge of the Company, no Person such director, officer, employee, consultant or contractor is infringing upon, misappropriating in material violation thereof.
(f) None of the Company’s material computer software (the “Proprietary Software”) is licensed or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned made available by the Company or any of its SubsidiariesSubsidiaries in any manner that, pursuant to the terms of any applicable “open source” or “free software” license, would require the Company to (i) disclose the source of any source code for any portion of such Proprietary Software; (ii) condition the use or distribution of such Proprietary Software on the granting to any Person of the right to make derivative works or other modifications to such Proprietary Software or portions thereof or any rights or immunities under any Owned Intellectual Property; (iii) conditions the use or distribution of such Proprietary Software on such Proprietary Software being made subject to the terms and conditions of any open source software license; or (iv) otherwise imposes an obligation on the Company or any of its Subsidiaries to distribute or otherwise make available any such Proprietary Software on a royalty-free basis. The Company and each of its Subsidiaries is and has been in material compliance with the terms and conditions of all licenses for such open source software. Neither the Company nor any of its Subsidiaries has received any written notice or request from any Person to disclose, distribute or license the Proprietary Software pursuant to an open source software license, or alleging noncompliance with any open source software license.
(dg) Except The Company and each of its Subsidiaries comply with, and have at all times since December 31, 2021 complied with, all Data Protection Requirements, except for violations that would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(h) The Company and each of its Subsidiaries have established and maintain, and have since December 31, 2021 maintained, commercially reasonable physical, technical, and administrative security measures and policies, compliant with Data Protection Requirements in all material respects, reasonably designed and implemented to protect the security, confidentiality, integrity, and availability of (i) information technology networks and systems, including the software owned or controlled by the Company or such Subsidiary and used in the course of the operations of their respective businesses (the “IT Systems”), and (ii) Personal Information collected, used, processed or held for use by or on behalf of the Company or such Subsidiary in the course of the operations of their respective businesses.
(i) Since December 31, 2021, neither the Company nor any of its Subsidiaries has experienced any unauthorized disclosure, destruction, modification, or use of, or access to, any Personal Information or any security incident or breach of security of the IT Systems that would in each instance require notification to any Person pursuant to any Data Protection Requirement, except as would not, individually or in the aggregate, reasonably likely to be expected material to have a Company Material Adverse Effect, the Company and its Subsidiaries, taken as a whole.
(j) Neither the Company nor any of its Subsidiaries have taken reasonable steps in accordance with normal industry practice has received any subpoenas, demands, or other notices from any Governmental Authority investigating, inquiring into, or otherwise relating to maintain and protect the confidentiality any actual or potential violation of all Company Intellectual Property that is material any Data Protection Law and, to the business of Company’s Knowledge, neither the Company and nor its Subsidiaries and the value is under investigation by any Governmental Authority for any actual or potential violation of which is contingent upon maintaining the confidentiality thereof. Except as any Data Protection Law except for violations that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is be material to the business of the Company and its Subsidiaries and the value Subsidiaries, taken as a whole. No complaint, claim, enforcement action, proceeding, or litigation of which is contingent upon maintaining the confidentiality thereof, any kind has been disclosed other than to Third Parties served on, or initiated against, the Company or its Subsidiaries by any private party or Governmental Authority alleging any violation of any Data Protection Requirement, except for violations that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceable.
(e) Except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant be material to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation Date, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, (v) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirementsas a whole.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) data security, cybersecurity, privacy, and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) of the Seller Disclosure Letter, the Company Entities do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United States.
Appears in 2 contracts
Samples: Merger Agreement (Vericity, Inc.), Merger Agreement (Vericity, Inc.)
Intellectual Property; Data Privacy. (a) Each Section 3.18(a) of the Company Disclosure Schedule sets forth a true and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has complete list as of the right to use date hereof of all (i) Owned Intellectual Property usedthat is Registered (“Registered Owned Intellectual Property”) and all Exclusively Licensed Intellectual Property that is Registered (“Registered Licensed Intellectual Property”), held indicating for use each such item, as applicable, the application and registration or necessary for grant or issue number, date, relevant jurisdiction, and the identity of the current applicant or registered owner and (ii) proprietary software that is owned by and material to the business of the Company or any Company Subsidiary.
(b) Except as would not have a Company Material Adverse Effect, (i) the operation of the business of the Company and its Subsidiaries each Company Subsidiary and the use of the Company Intellectual Property and the development, manufacture, use, marketing, licensing, distribution, sale, import and other exploitation of the Company Products in connection therewith, does not conflict with, infringe, misappropriate, dilute or otherwise violate, and has not in the past six (collectively6) years conflicted with, infringed, misappropriated, diluted or otherwise violated, the “Intellectual Property rights of any third party, (ii) no Actions are pending or, to the Knowledge of the Company, threatened against the Company or a Company Subsidiary alleging any of the foregoing or concerning the Company Intellectual Property”, (iii) to the Knowledge of the Company, no person has, within the past six (6) years, engaged in or is engaging in any activity that conflicts with, infringes, misappropriates, dilutes or otherwise violates any Company Intellectual Property and (iv) neither the Company nor a Company Subsidiary has brought or threatened any Action in connection with the foregoing.
(c) Except as would not have a Company Material Adverse Effect, (i) the Company or a Company Subsidiary is the exclusive, and with respect to the Registered Owned Intellectual Property, properly executed and duly recorded, owner of the entire right, title and interest in and to the Owned Intellectual Property, free and clear of all Liens (other than Permitted Liens); and (ii) the Company and each Company Subsidiary has a valid license to use the Licensed Intellectual Property, except as would not, individually or in the aggregateordinary course of its business as currently conducted, reasonably be expected subject only to have a Company Material Adverse Effect. Schedule 3.17(a) the terms of the Seller Disclosure Letter sets forth a true and complete list Company IP Agreements. Neither the execution of this Agreement nor the consummation of the following Transactions will result in, pursuant to any Contract to which are owned or purported to be owned by the Company or any of its Subsidiariesa Company Subsidiary is a party: (iA) patents and patent applicationsthe loss or impairment of the Company’s or any Company Subsidiary’s right to own, license, sell or use any material Company Intellectual Property or material Systems; (iiB) registered trademarks and applications thereforthe payment of any additional consideration (including increased royalty payment terms) for the Company’s or any Company Subsidiary’s right to own, license, sell or use any material Company Intellectual Property or material Systems (iiiother than ordinary course payments for any increased usage generally, not specific to the Transactions); (C) registered copyrights and applications therefora breach of any Company IP Agreement in any material respect; or (D) the release, and (iv) domain name registrations ((i) - (iv), the “disclosure or delivery of any material Company Registered IP”)Intellectual Property by any escrow agent or to any other person. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ix) none of the Company no inequitable conduct, on-sale bar or public use or improper disclosure activity or violation has been engaged in or committed with respect to any Owned Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (“Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in partor, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) to the Knowledge of the Company, all Company any Exclusively Licensed Intellectual Property, or in the prosecution of any patent applications or patents in any Owned Intellectual Property or, to the Knowledge of the Company, Exclusively Licensed Intellectual Property and (y) no information was withheld from any entity requiring disclosure of such information during prosecution of any patent applications or patents in any Owned Intellectual Property or, to the Knowledge of the Company, Exclusively Licensed Intellectual Property.
(d) The Registered IP is subsisting, in full force and effect, Owned Intellectual Property and, to the Knowledge of the Company, the Registered Licensed Intellectual Property are (i) subsisting, valid and enforceable, (ii) currently in compliance in all material respects with any and all renewal fees formal applicable legal requirements necessary to maintain the validity and other maintenance fees have been paid. There exist no material contractual restrictions on enforceability thereof and, with respect to the disclosure, use, license or transfer of any Company Registered Owned Intellectual Property.
, record and perfect the Company’s or a Company Subsidiary’s interest therein and the chain of title thereof, and all filings, payments and other actions required to be made or taken to maintain (cother than any intentional abandonment in the reasonable business judgment of any member of the Company Group prior to the date of this Agreement or in accordance with Section 5.01(b)(xvii)) or revive, in the case of accidental abandonment, each item of Registered Owned Intellectual Property and, to the Knowledge of the Company, Registered Licensed Intellectual Property, in full force and effect have been made by the applicable deadline and (iii) not subject to any outstanding Order or Contract that would impair the validity or enforceability thereof, in each case, except as would not have a Company Material Adverse Effect. Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to not have a Company Material Adverse Effect, (i) the conduct there is no basis or argument in fact or in Law from which one might reasonably infer that any of the business Registered Owned Intellectual Property and, to the Knowledge of the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violatedCompany, the Exclusively Licensed Intellectual Property rights Property, is invalid or unenforceable (including by reason of any Third Party and (ii) no Legal Action is pendingmisjoinder or nonjoinder of inventors). No Actions are pending or, asserted in writing, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct a Company Subsidiary, as of the business date hereof, based upon or challenging or seeking to deny or restrict the use by the Company or such Company Subsidiary, or the ownership, registrability, validity, patentability, scope or enforceability, of any of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property or, except for ordinary course proceedings in connection with the examination of patents or trademarks by the United States Patent and Trademark Office or any foreign equivalent thereof during the prosecution of such patents or trademarks (but not including ex parte, post-examination or post-issuance proceedings or trademark oppositions or cancellations) or as would not have a Company Material Adverse Effect.
(e) Except as would not have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary is obligated to provide any consideration (whether financial or otherwise, and whether ongoing, outstanding or contingent), or account to any third party, with respect to any exercise of rights by the Company or any Company Subsidiary, or any successor thereto, in any Owned Intellectual Property or, to the Knowledge of the Company, the Exclusively Licensed Intellectual Property, or with respect to the manufacture, use or sale of the Company Products.
(f) Except as would not have a Company Material Adverse Effect: (i) the Company and each Company Subsidiary has complied with all applicable notice and marking requirements for, and none of the labels or other packaging or marketing materials with respect to the Company Products contain any false, inaccurate or incorrect marking for, Registered Owned Intellectual Property and Registered Licensed Intellectual Property or, to the Knowledge of the Company, any Exclusively Licensed Intellectual Property; (ii) no Governmental Authority or academic or medical institution or consortium has provided any funding, facilities or personnel for the development or creation of, or has any claim of right to, ownership of or other Lien on, any Owned Intellectual Property or, to the Knowledge of the Company, any Exclusively Licensed Intellectual Property; and (iii) there is no prohibition or restriction by any Governmental Authority (including no assignment, grant back, license, “march-in” or other rights) on the use of any Third PartyOwned Intellectual Property or Company Products or, to the Knowledge of the Company, Exclusively Licensed Intellectual Property, in any jurisdiction, or on the export or import of any of the Owned Intellectual Property or, to the Knowledge of the Company, Exclusively Licensed Intellectual Property, from or to any jurisdiction.
(g) Except as would not have a Company Material Adverse Effect, the Company and each Company Subsidiary has taken all commercially reasonable steps in accordance with normal industry practice to maintain the confidentiality of the trade secrets and other material confidential Intellectual Property used in connection with its business. To the Knowledge of the Company, there has been no Person is infringing upon, misappropriating misappropriation of any trade secrets or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any other confidential Intellectual Property owned or purported to be owned by used in connection with the business of the Company or any of its SubsidiariesCompany Subsidiary by any person, except as would not have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has disclosed any trade secrets or other confidential Intellectual Property to any person other than pursuant to appropriate agreements that require such trade secrets or other confidential Intellectual Property to be kept confidential, in each case, except as would not have a Company Material Adverse Effect.
(dh) No current or former employee, consultant, independent contractor or agent of the Company or a Company Subsidiary (i) has misappropriated any trade secrets or other confidential Intellectual Property of any other person in the course of performance as an employee, consultant, independent contractor or agent of the Company or such Company Subsidiary or (ii) is in default or breach of any term of any employment agreement, nondisclosure agreement, assignment of invention agreement or similar agreement or Contract to which any member of the Company Group is party or, to the Knowledge of the Company, any other Contract, relating in any way to the protection, ownership, development, use or transfer of Intellectual Property, in each case of clauses (i) and (ii), except as would not have a Company Material Adverse Effect. Except as would not have a Company Material Adverse Effect, all persons (including current and former employees, contractors and consultants) who participated in conceiving, developing, modifying, improving or creating any Owned Intellectual Property for the Company or any Company Subsidiary have executed valid and enforceable written Contracts (A) providing for the non-disclosure by such person of any confidential information or trade secrets and (B) providing for the assignment (by way of a present grant of assignment) by such person to the Company or the applicable Company Subsidiary of any Intellectual Property arising out of such person’s employment and in the scope of such person’s employment, or otherwise during the term of such employment as allowed under applicable Law, with the Company or the applicable Company Subsidiary, or engagement and in the scope of such person’s engagement during the term of such engagement with the Company or the applicable Company Subsidiary. Except as would not have a Company Material Adverse Effect, no current or former employee, contractor or consultant has any rights to, and neither the Company nor any Company Subsidiary has any obligation to account for, inventor reward or remuneration amounts paid, unpaid or payable, for contributions to any Owned Intellectual Property.
(i) Except as would notnot have a Company Material Adverse Effect, individually the Company Group is, and has been since January 1, 2020, in compliance in all material respects with all privacy and information security obligations to which it is bound under applicable Law, Contract or privacy policy or online terms of use (collectively, “Data Security Requirements”). Except as would not have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary has received any written or, to the Knowledge of the Company, threatened notices or complaints from any person or Governmental Authority alleging, or been subject to any audits or investigations concerning, any failure to comply with any Data Security Requirements. Except as would not have a Company Material Adverse Effect, since January 1, 2020, there has been no unauthorized use, access, or disclosure, of any Personally Identifiable Information collected, maintained, or stored, in connection with the aggregate, business of the Company or any Company Subsidiary or of any trade secret or confidential information of the business of the Company or any Company Subsidiary. Except as would not reasonably be expected to have a Company Material Adverse Effect, no circumstances have arisen that would require the Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice or any Company Subsidiary to maintain and protect the confidentiality notify a Governmental Authority or any other person of all Company Intellectual Property that is material a data security breach, security incident or violation of any data security policy pertaining to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. or any Company Subsidiary.
(j) Except as would not, individually or in the aggregate, reasonably be expected to not have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company Systems are reasonably maintained and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceable.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databasessufficiently good working condition, and systems, provide sufficient capacity to perform all information technology equipment, and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation Date, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries each Company Subsidiary as currently conducted. Except as would not have a Company Material Adverse Effect, there has been no failure, breakdown, performance reduction or other adverse event affecting any Systems, and there has been no unauthorized use, intrusion, or breach of security affecting any Systems, or any other loss, unauthorized disclosure or theft of any sensitive or confidential information, including Personally Identifiable Information, in the possession or control of the Company or any Company Subsidiary. Except as would not have in place a Company Material Adverse Effect, the Company and each Company Subsidiary maintains commercially reasonable backup and data recovery, disaster recovery recovery, and business continuity plans, procedures procedures, and facilities, (v) no Person has gained unauthorized access to any IT Assets since and acts in material compliance therewith. Except as would not have a Company Material Adverse Effect, the Company Incorporation DateSystems are free, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) respects, from any disabling codes or instructions, spyware, Trojan horses, worms, viruses or other software routines that permit or cause unauthorized access to, or disruption, impairment, disablement, or destruction of, software, data security, cybersecurity, privacy, and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) of the Seller Disclosure Letter, the Company Entities do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United Statesmaterials.
Appears in 2 contracts
Samples: Merger Agreement (Apollo Endosurgery, Inc.), Merger Agreement (Apollo Endosurgery, Inc.)
Intellectual Property; Data Privacy. (a) Each of the Company and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use all Intellectual Property used, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected . The Company has provided to have a Company Material Adverse Effect. Schedule 3.17(a) of the Seller Disclosure Letter sets forth Buyer a true and complete list of the following which are owned or purported to be owned by the Company or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications therefor, and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions transactions contemplated herein do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none None of the Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (the “Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation cancelation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) to the Knowledge of the Company, all Company Registered IP is subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property.
(c) Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the The conduct of the business of the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party and (ii) no Legal Action is pending, asserted in writing, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the The Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain and protect the confidentiality of all Company Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none None of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceable.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all All Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation DateDate and, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, (v) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) data security, cybersecurity, privacy, and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) of the Seller Disclosure Letter, the The Company Entities and its Subsidiaries do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United StatesHong Kong.
Appears in 1 contract
Samples: Share Exchange Agreement (Connexa Sports Technologies Inc.)
Intellectual Property; Data Privacy. (a) Each Section 3.12(a) of the Company Disclosure Schedule contains a list of all issued patents, patent applications, and registrations and applications for registration of other Intellectual Property Rights, in each case that are included in the Business Intellectual Property Rights (the “Registered Business Intellectual Property Rights”), including, as applicable, the respective registration and application numbers, the record owner (and if different, beneficial owner), the registration and application date, the jurisdiction in which such item is registered or applied for, and for Internet domain-name registrations, the expiry date and registrar. Other than software provided under the Transition Services Agreement, if any, no software owned by Seller or any of the Retained Subsidiaries is used in and material to the Business.
(b) Seller or one of its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use exclusive owner of all material Business Intellectual Property usedRights, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all any Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Schedule 3.17(a) of the Seller Disclosure Letter sets forth a true and complete list of the following which All Registered Business Intellectual Property Rights are owned or purported to be owned by the Company or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications thereforsubsisting, and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (“Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) to the Knowledge knowledge of the Company, all Company Registered IP is subsisting, in full force and effect, and, to the Knowledge of the CompanySeller, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property.
(c) Except as set forth in Schedule 3.17(con Section 3.12(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectSchedule, (i) the conduct of the business of the Company and its Subsidiaries does not infringe uponno Actions are pending or since January 1, misappropriate 2021 have been brought or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party and (ii) no Legal Action is pending, asserted threatened in writing, or to the Knowledge of the Company, threatened writing against the Company Seller or any of its Subsidiaries that challenge the ownership, registration, scope, validity, or enforceability of any of the material Business Intellectual Property Rights, or that allege that the conduct of the business of the Company or its Subsidiaries infringes uponBusiness infringes, misappropriates misappropriates, dilutes or otherwise violates or has infringed, misappropriated, diluted or otherwise violated the Intellectual Property rights Rights of any Third Party. To third party, (ii) the Knowledge conduct of the CompanyBusiness as it is conducted as of the date of this Agreement does not infringe, no Person is infringing uponmisappropriate, misappropriating dilute or otherwise violatingviolate in any material respect, or hasand since January 1, since the Company Incorporation Date2021 has not infringed, infringed upon, misappropriated, misappropriated diluted or otherwise violated, violated in any material respect any Intellectual Property owned Rights of any third party, (iii) no Actions are pending or purported to be owned in since January 1, 2021 have been brought or threatened in writing by the Company Seller or any of its SubsidiariesSubsidiaries that allege that any third party has infringed, misappropriated, diluted or otherwise violated any Business Intellectual Property Rights in any material respect, and (iv) to the knowledge of Seller, no third party is infringing, misappropriating, diluting or otherwise violating any Business Intellectual Property Right in any material respect.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company Seller and its Subsidiaries have taken reasonable steps measures consistent with industry standards to enforce, protect and maintain the material Business Intellectual Property Rights, including implementing and enforcing a reasonable quality control program designed to ensure their and their licensees’ use of Trademarks contained in the Business Intellectual Property Rights are in accordance with normal industry practice the standards and specifications established and employed by Seller and its Subsidiaries in the operation of the Business. All current and former officers, directors, employees, consultants and contractors of Seller and its Subsidiaries who have developed material Intellectual Property Rights that are purported to maintain be owned by any Purchased Subsidiary after giving effect to Pre-Closing Transfers have assigned ownership of such Intellectual Property Rights to Seller or its applicable Subsidiary, except where such ownership vests in Seller or its applicable Subsidiary by operation of applicable law, and no current or former officer, director, employee, consultant, or independent contractor of Seller or any of its Subsidiaries owns any material Business Intellectual Property Rights. Seller and its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all Company material trade secrets and other material confidential information included in the Business Intellectual Property that is Rights and all confidential information of third parties used in the Business which they are required to maintain confidential by contract or Applicable Law. No such material to the business trade secrets and other material confidential information has been disclosed by Seller or any of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would notto any Person (i) other than to Persons who are subject to a contractual, individually legal or in the aggregate, reasonably be expected enforceable ethical obligation to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining maintain the confidentiality thereof, has been disclosed other than or (ii) in violation of any contract to Third Parties that which Seller or any of its Subsidiaries are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceableparty.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned The Business Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information Rights constitute all of the Company Intellectual Property Rights owned by Seller and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation that are used or held for use in connection with the operation conduct of the business Business (other than the Seller Marks). Except as set forth on Section 3.12(e) of the Company and its Subsidiaries (“IT Assets”), (ii) in each caseDisclosure Schedule, the Purchased Assets include all Contracts, if any, to which Seller or one of its Retained Subsidiaries is party pursuant to which Seller or any of its Retained Subsidiaries is granted a license under or right to use third-party Intellectual Property Rights used in the Business (other than with respect to IT Assets Systems to be provided under the Transition Services Agreement). The execution, delivery and performance by Seller of the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby do not and will not result in the loss, termination or impairment of, or trigger any requirement to pay additional royalties or other consideration for the continued use by Buyer or any Purchased Subsidiary of, any material Intellectual Property Rights used in the conduct of the Business (other than the Seller Marks and IT Systems to be provided under the Transition Services Agreement).
(f) The IT Systems are sufficient, and operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary as needed, for the current operation of conduct the business of the Company and its SubsidiariesBusiness as currently conducted, and all are, to the knowledge of Seller, free from any Malicious Code. The IT Assets Systems are owned or licensed under valid licenses in good working condition and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since January 1, 2021 in any way that has materially impacted the Company Incorporation Date, to the Knowledge operation of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company Business. Seller and its Subsidiaries have taken implemented and maintain commercially reasonable steps measures designed to provide for protect the remote-site back-up integrity and security of the IT Systems against unauthorized use, access, interruption, modification and corruption as well as to protect the integrity, accuracy, authenticity, readability, accessibility, availability, or confidentiality of data and information critical to the conduct (including Personal Data) Processed by or on behalf of the business of the Company and its Subsidiaries Seller, and have in place implemented commercially reasonable data backup, data storage, system redundancy and disaster avoidance and recovery systems and business continuity plansprocedures consistent with customary industry practices and Applicable Law. Since January 1, procedures and facilities2021, (v) there has been no Person has gained Security Incident or other unauthorized access to the IT Systems, or, to the knowledge of the Seller, to information technology systems of third parties who store or Process Personal Data for or on behalf of the Business, that has resulted in any IT Assets since the Company Incorporation Date, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, use, disclosure, destructiondeletion, lossmodification, corruption or alteration encryption of customer data any material data, Personal Data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirementsBusiness contained therein or processed thereby.
(g) Each of the Company Since January 1, 2021, Seller and its Subsidiaries is in compliance that Process Personal Data on behalf of the Business and, have in all material respects complied with all applicable Laws pertaining to and comply with (i) data securityall Privacy Laws, cybersecurity(ii) written policies, notices, statements, and procedures of Seller and its Subsidiaries relating to privacy, security or the Processing of Personal Data, (iii) contractual commitments of Seller and its Subsidiaries related to the Processing of Personal Data, and (iv) any consent received by Seller and its Subsidiaries from any Governmental Authority or the subjects of such Personal Data pertaining to the Processing thereof (clauses (i) to (iv) collectively, the “Privacy Requirements”).
(h) The Business (i) is not under investigation by any Governmental Authority for any violation of any Privacy Requirements; and (ii) since January 1, 2021, has not received any written notice, correspondence, communications, actions, claim lawsuit, investigation, audit request or report from any person or Governmental Authority related to any Security Incident or alleging any violation of the collection, storage, use, access, disclosure, processing, security, Privacy Requirements and transfer of personal datano proceedings are pending or, to the extent knowledge of Seller, threatened in writing against the Seller or any of its Business related to any Security Incident or alleging a violation of the Privacy Requirements. To the knowledge of the Seller, there are no facts that could reasonably give rise to clauses (i) or (ii).
(i) The execution, delivery and performance of this Agreement and the transactions contemplated under this Agreement will not breach any Privacy Requirement, and will not, to the knowledge of Seller, give rise to any right of termination or other restriction on the right of the Buyer to Process any personal Data as necessary to conduct the Business in the same manner as it is subject currently conducted in all material respects.
(j) The Seller and its Subsidiaries maintain insurance coverage containing industry standard policy terms and limits that are appropriate with respect to same. Except the risk of liability relating to any Security Incident, and, except as set forth in Schedule 3.17(gon Section 3.12(j) of the Seller Disclosure LetterSchedule, no claims have been made under such insurance policy(ies) with respect to Security Incidents that have had a material adverse impact on the Company Entities do not have any premisesBusiness, employees or tangible assets, and does not conduct any business activities, in any country other than the United Statestaken as a whole.
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Each of the Company and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use all Intellectual Property used, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Schedule 3.17(a3.16(a) of the Seller Disclosure Letter sets forth a true lists all Registered Owned Intellectual Property, indicating for each item the registration or application number, the filing or registration date, the record (and, if different, beneficial) owner, and complete list the applicable filing jurisdiction. All material Registered Owned Intellectual Property is subsisting, and to Seller’s Knowledge, is valid and enforceable and is not subject to any Liens other than Permitted Liens. As of the following which are owned or purported to be owned by the Company or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications therefor, and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance date of this Agreement by Agreement, no Registered Owned Intellectual Property is subject to any pending Action or outstanding Order concerning the Company and the consummation by the Company validity, enforceability, ownership, registration, use or scope of the Transactions do not and will not encumber, impair or extinguish any of the Company such Intellectual Property.
(b) Except Seller and its Subsidiaries have (and, as would notof immediately prior to the Closing, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company will have) sufficient rights to all Intellectual Property owned or purported and Technology that is Related to be owned the Business to conduct the Business, in all material respects, as presently conducted, and the use and exploitation of all such intellectual Property following the Closing by the Company or any of will be on substantially the same terms as the terms applicable to Seller and its Subsidiaries (“Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) prior to the Knowledge of the Company, all Company Registered IP is subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual PropertyContribution.
(c) Except as set forth in Schedule 3.17(c) of the Seller Disclosure LetterTo Seller’s Knowledge, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the conduct of the business of the Company and its Subsidiaries Business does not infringe uponinfringe, dilute, misappropriate or otherwise violateviolate the Intellectual Property of any third party, and has notnot infringed, since the Company Incorporation Date infringed upondiluted, misappropriated, misappropriated or otherwise violated, violated the Intellectual Property rights of any Third Party and third party during the three (ii3) year period immediately preceding the date of this Agreement. There is no Legal Action is pendingpending or, asserted in writing, or to the Knowledge of the CompanySeller’s Knowledge, threatened against the Company or any of its Subsidiaries alleging that the conduct of the business of the Company or its Subsidiaries infringes uponBusiness is infringing, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upondiluting, misappropriating or otherwise violating, or hashas infringed, since the Company Incorporation Datediluted, infringed upon, misappropriated, misappropriated or otherwise violatedviolated any Person’s Intellectual Property rights. To Seller’s Knowledge, no Person is infringing, diluting, misappropriating or otherwise violating any Intellectual Property owned or purported to be rights owned by Seller and its Subsidiaries and Related to the Company or any of its SubsidiariesBusiness.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company Seller and its Subsidiaries have taken commercially reasonable steps in accordance with normal industry practice measures to maintain and protect the confidentiality of all Company Intellectual Property the Trade Secrets that is material are Related to the business Business, and, to Seller’s Knowledge, there has been no unauthorized access, use or disclosure of such Trade Secrets. All former and current officers, directors, employees, consultants, agents, and independent contractors of the Company Seller and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually who have contributed to or participated in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none conception and development of the Company Owned Intellectual Property that is material Related to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements Business have entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceablebinding proprietary rights agreements with the relevant Seller or Subsidiary vesting ownership of such Intellectual Property in such Seller or Subsidiary, except where such ownership is vested by operation of law.
(ei) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) The IT Assets that protects the confidential information of the Company and its Subsidiaries and assigns are Related to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the IT Assets Business operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary otherwise as required for the current operation operations of the business of the Company Business and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since within the Company Incorporation Date, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that past five (A5) enable or assist any Person to access without authorization or disable or erase the IT Assets, or years; (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, (vii) no Person has gained unauthorized access to such IT Assets, and there has been no other security breach or other similar event affecting any such IT Assets since which has resulted in the unauthorized access, use, disclosure, modification, encryption, loss or destruction of any Company Incorporation Date, Data or any other material information or data stored or contained therein; and (viiii) the Company Seller and its Subsidiaries have maintainedimplemented commercially reasonable measures to protect the confidentiality, continue to maintainintegrity and security of such IT Assets, as well as reasonable data backup, system redundancy, and caused their vendors disaster avoidance and recovery technology and procedures, consistent with industry practices.
(f) In the collection and Processing of any Personal Data Related to maintainthe Business, safeguards, security measures Seller and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standardsSubsidiaries are, and (vii) to Seller’s Knowledge, its and their Personal Data Processors and Personal Data Suppliers are, in compliance with and since January 1, 2016 have complied with, all applicable Privacy Commitments in all material respects. Without limiting the Company foregoing, Seller and its Subsidiaries have, and to Seller’s Knowledge, its and their Personal Data Suppliers have, collected all Personal Data Related to the Business lawfully including acquiring all necessary consents from data subjects and otherwise have all requisite legal authority to Process, use and hold such Personal Data in the manner it is Processed by such Persons without breaching any of the Privacy Commitments in any material respect. Seller and its Subsidiaries have adopted and maintain appropriate technical and organizational security measures designed to prevent the unlawful Processing of Personal Data and unauthorized access, accidental loss or destruction of or damage to Personal Data in place with the third-party owners and operators of all data centers its, or its Subsidiaries’ possession or control, which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and measures are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with the Privacy Commitments.
(g) To the extent that Seller or its Subsidiaries Process any financial account numbers (such as credit cards, bank accounts, PayPal accounts, debit cards), passwords, CCV data, or other related data in connection with their operation of the Business, each of Seller and its Subsidiaries has implemented information security procedures, processes and systems that have at all times met all applicable Laws pertaining related to the Processing of cardholder data, including those established by applicable Governmental Entities, and the Payment Card Industry Standards Council (including the Payment Card Industry Data Security Standard).
(h) To the extent Related to the Business, Seller and its Subsidiaries present, and since January 1, 2016 have presented, a Privacy Policy which complies with Privacy Laws to Data Subjects prior to the collection of any Personal Data, and no such Privacy Policy is or has been inaccurate, materially misleading or materially deceptive.
(i) data securitySeller and its Subsidiaries have not transferred or permitted the transfer of Personal Data Related to the Business originating in the European Economic Area or the United Kingdom outside the European Economic Area or the United Kingdom, cybersecurityexcept where such transfers have complied with the requirements of Privacy Laws and the Company Privacy Policies.
(j) In the operation of the Business, privacySeller and its Subsidiaries do not sell, rent or otherwise make available to any Person any Personal Data, except in a manner that complies in all material respects with the applicable Privacy Commitments. The execution, delivery and performance of this Agreement and the transactions contemplated herein comply, and will comply, in all material respects, with all Privacy Commitments of the Seller and its Subsidiaries. Immediately following the Transactions, the Company will be permitted to Process, collect, store, use and disclose Personal Data held by the Company to the same extent the Seller and its Subsidiaries would have been able to do so had the Transactions not occurred.
(k) Since January 1, 2016, neither Seller nor any of its Subsidiaries has received any written (i) notice Related to the Business that Seller or any of its Subsidiaries is or has been in breach of any Privacy Commitment, or (ii) request, complaint or objection to any collection or use of Personal Data Related to the collectionBusiness from any data protection authority or third party (including data subjects) that remains unresolved.
(l) Since January 1, storage2016, useneither Seller nor any of its Subsidiaries has experienced any unauthorized access to, accessdeletion or other misuse of, any Personal Data Related to the Business in its possession or control (a “Security Incident”) or made or been required to make any disclosure, processingnotification or take any other action under any applicable Privacy Laws in connection with any Security Incident. Since January 1, security2016, Seller and transfer its Subsidiaries have made all notifications to customers or individuals required to be made by Seller or its Subsidiaries under any applicable Privacy Laws arising out of personal data, or relating to any event of unauthorized access to or disclosure or acquisition of any Personal Data Related to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) Business by any Person of the Seller Disclosure Letter, which the Company Entities do not or its Subsidiaries have knowledge.
(m) No Action before any premisescourt, employees administrative body or tangible assetsother Governmental Entity (whether of a criminal, and does not conduct civil or administrative nature) has been filed or commenced against Seller or its Subsidiaries nor threatened against Seller or its Subsidiaries in writing, alleging any business activitiesfailure to comply with any Privacy Laws Related to the Business. To Seller’s Knowledge, in since January 1, 2016, no action has been filed, commenced or threatened against any country other than Personal Data Supplier or Personal Data Processor with respect to any Personal Data Processed for Seller or its Subsidiaries Related to the United StatesBusiness.
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Each of the The Company and its Subsidiaries ownssubsidiaries own, is licensed possess, license or have other rights to use, pursuant to validall patents, enforceable patent applications, trade and binding Contractsservice marks, or otherwise has the right to use all Intellectual Property usedtrade and service mxxx registrations, held for use or necessary for the operation of the business of the Company trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and its Subsidiaries other intellectual property (collectively, the “Company Intellectual Property”) free and clear necessary for the conduct of the Company’s business in all Liens (other than Permitted Liens), except material respects as would not, individually now conducted or as proposed in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Schedule 3.17(a) of the Seller Disclosure Letter sets forth a true and complete list of the following which are owned or purported SEC Filings to be conducted.
(a) Except as described in the SEC filings, there are no rights of third parties to any such Intellectual Property owned by the Company and its subsidiaries, including no liens, security interests or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications therefor, and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
other encumbrances; (b) Except as would notto the Company’s Knowledge, individually there is no infringement by third parties of any such Intellectual Property; (c) there is no pending, or to the Company’s Knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, and, to the aggregateCompany’s Knowledge, reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company is not aware of a factual basis for any such claim; (d) such Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (“Company Owned Intellectual Property”) (A) has not been adjudged by a court of competent jurisdiction invalid or unenforceable unenforceable, in whole or in part, (e) there is no pending or, to the Company’s Knowledge, threatened action, suit, proceeding or (B) is claim by others challenging the subject validity or scope of any cancellation such Intellectual Property, including interferences, oppositions, reexaminations or reexamination government proceedings, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (f) there is no pending or threatened action, suit, proceeding or claim by others that the Company infringes, misappropriates, or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other proceeding challenging its ownershipfact which would form a reasonable basis for any such claim; (g) each employee and consultant of the Company has entered into an invention assignment agreement with the Company and no employee of the Company is in or has been in violation of any term of any employment contract, usepatent disclosure agreement, registrabilityinvention assignment agreement, validity and enforceabilitynon-competition agreement, and non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company; (iih) to the Knowledge of the Company’s Knowledge, all Company Registered IP there is subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license patent or transfer of any Company Owned Intellectual Property.
(c) Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or published patent application in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the conduct of the business United States or other jurisdiction which contains valid claims that dominate any product candidate of the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party and (ii) no Legal Action is pending, asserted in writing, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
(d) Except as would not, individually or described in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company SEC Filings; and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain and protect the confidentiality of all Company Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceable.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation used or is not aware of any prior art that may render any U.S. patent held for use in connection with the operation of the business of by the Company invalid or any U.S. patent application held by the Company un-patentable which has not been disclosed to the U.S. Patent and its Subsidiaries (“IT Assets”), (ii) in each case, Trademark Office and all such prior art has been disclosed to the IT Assets operate and perform patent office or other jurisdiction where required. The Company has complied in all material respects in accordance with their documentation all license agreements to which it is a party relating to the Intellectual Property and functional specifications and are sufficient has not received any asserted or configurable to effectively perform all operations necessary for the current operation threatened claim of breach of any of the business of same. The Company is presently and was in the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, past three (iii3) the IT Assets have not materially malfunctioned or failed since the Company Incorporation Date, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, (v) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is years in compliance in all material respects with all applicable Laws pertaining U.S. or non-U.S. laws relating to (i) data security, cybersecurity, privacy, data protection, or the collection and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer use of personal datainformation collected, used, or held for use by the Company in the conduct of its business; and no claims have been asserted or, to the extent that it is subject to same. Except as set forth Company’s Knowledge, threatened in Schedule 3.17(g) of the Seller Disclosure Letter, writing against the Company Entities do not have alleging a violation of any premises, employees person’s privacy or tangible assets, and does not conduct any business activities, in any country other than the United Statespersonal information or data rights.
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Each of the Company and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use all Intellectual Property used, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected . The Company has provided to have a Company Material Adverse Effect. Schedule 3.17(a) of the Seller Disclosure Letter sets forth Buyer a true and complete list of the following which are owned or purported to be owned by the Company or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications therefor, and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none None of the Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (the “Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation cancelation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) to the Knowledge of the Company, all Company Registered IP is subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property.
(c) Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the The conduct of the business of the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party and (ii) no Legal Action is pending, asserted in writing, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the The Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain and protect the confidentiality of all Company Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none None of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceable.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all All Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation DateDate and, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, (v) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) data security, cybersecurity, privacy, and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) of the Seller Disclosure Letter, the The Company Entities and its Subsidiaries do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United StatesHong Kong.
Appears in 1 contract
Samples: Share Purchase Agreement (Connexa Sports Technologies Inc.)
Intellectual Property; Data Privacy. (ai) Each Section 5.1(r)(i) of the Company Disclosure Letter sets forth a true, correct, and complete list of all Company Registered IP, indicating for each item, as applicable: (A) the name of the applicant/registrant and current legal and beneficial owner(s); (B) the jurisdiction where the application/registration is located (or, for Internet domain names, the applicable registrar); (C) the application or registration number; and (D) the filing date, issuance/registration/grant date and expiration date. All Company Registered IP is subsisting, valid and, other than Company Registered IP constituting applications, to the Company’s Knowledge, enforceable, and since December 31, 2018, neither the Company nor any of its Subsidiaries has received any written notice challenging the validity or enforceability of, or the Company’s or any of its Subsidiaries’ rights in or to, any Company Registered IP except as disclosed on Section 5.1(r)(i) of the Company Disclosure Letter.
(ii) Except as indicated on Section 5.1(r)(ii) of the Company Disclosure Letter, the Company and its Subsidiaries ownsexclusively own or hold an exclusive license under, all Company Intellectual Property, free and clear of all Liens. No material Company Intellectual Property is licensed subject to useany outstanding order, pursuant to valid, enforceable and binding Contractsjudgment or decree adversely affecting the Company’s or its Subsidiaries’ ownership or use of, or otherwise has the right its rights in or to, such material Company Intellectual Property.
(iii) The Company and its Subsidiaries have sufficient and valid rights to use all Intellectual Property usedRights necessary for, held for use or necessary for otherwise used in and material to, their respective businesses as presently conducted, all of which rights shall survive the operation consummation of the business of Transactions to the same extent as available to the Company and its Subsidiaries on the date of this Agreement.
(collectivelyiv) Except as has not resulted in, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would notnot reasonably be expected to result in, individually or in the aggregate, reasonably be expected to have a material liability or business disruption, (A) neither the Company Material Adverse Effect. Schedule 3.17(a) nor any of its Subsidiaries, nor the Seller Disclosure Letter sets forth a true and complete list operation of their respective businesses (including the following which are owned development, manufacture, use, sale, commercialization or purported to be owned other exploitation of any product, service or other offering currently provided or under development by the Company or any of its Subsidiaries: ) has, within the past six (i6) patents and patent applicationsyears infringed, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications thereformisappropriated or otherwise violated the Intellectual Property Rights of any other Person, and (ivB) domain name registrations ((i) - (iv)no actions, the “Company Registered IP”). Except as would notsuits, individually claims, hearings, arbitrations, investigations or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish other proceedings regarding any of the Company Intellectual Property.
(b) Except as would not, individually foregoing are pending or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (“Company Owned Intellectual Property”) (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) to the Knowledge of the Company, all Company Registered IP is subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property.
(c) Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the conduct of the business of the Company and its Subsidiaries does not infringe upon, misappropriate or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party and (ii) no Legal Action is pending, asserted in writing, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
(dv) Except as set forth on Section 5.1(r)(v) of the Company Disclosure Letter or as has not been, and would notnot reasonably be expected to be, individually or in the aggregate, reasonably be expected material to have the Company or any of its Subsidiaries, to the Company’s Knowledge, no third party is infringing, misappropriating, or otherwise violating any Company Intellectual Property, and except as set forth on Section 5.1(r)(v) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has asserted or threatened to assert a Company Material Adverse Effectclaim of such infringement, the misappropriation or violation against any third party since December 31, 2018.
(vi) The Company and its Subsidiaries have taken commercially reasonable steps in accordance with normal industry practice measures to maintain and preserve the enforceability of all material Company Intellectual Property, and to protect and preserve the confidentiality and value of all material Trade Secrets that are owned, used or held for use by the Company or any of its Subsidiaries. No material Trade Secrets constituting Company Intellectual Property that is material have been made available to or, to the business of the Company Company’s Knowledge, discovered by any Person except pursuant to valid and its Subsidiaries appropriate confidentiality and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or in the aggregate, reasonably be expected non-disclosure obligations requiring any such Person to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining maintain the confidentiality thereof, has been disclosed other than and not to Third Parties that are bound use such Trade Secrets except as authorized by customarythe Company or the applicable Subsidiary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that aresuch obligations have not, to the Knowledge of the Company’s Knowledge, valid and enforceablebeen breached in any material respect.
(evii) Except as would notAll current and former Employees, individually or in the aggregateofficers, reasonably be expected to have a Company Material Adverse Effectdirectors, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid consultants and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information contractors of the Company and or any of its Subsidiaries who have contributed to the creation or development of any material Intellectual Property Rights for or on behalf of the Company or any of its Subsidiaries have executed and assigns delivered to the Company (or one of its Subsidiaries, as applicable) exclusive ownership , a valid written Contract containing an irrevocable present assignment to the Company or such Subsidiary of all of such Person’s right, title and interest in any such Intellectual Property Rights. To the Company’s Knowledge, no Employee, officer, director, stockholder, consultant, or contractor of the Person’s contributionCompany or any of its Subsidiaries retains or claims to retain any rights in, development or conceptionnor has any of them made application for, other than any such Intellectual Property excluded by Law or non-assignable moral rightsRights.
(fviii) Except as would notset forth on Section 5.1(r)(viii) of the Company Disclosure Letter, individually neither the Company nor any of its Subsidiaries has distributed, made available for remote interaction, incorporated or linked to any Software that is subject to any open source license, in each case, in a manner that requires the aggregateCompany or any of its Subsidiaries to (A) disclose, reasonably be expected to have a distribute or make available any proprietary source code constituting Company Material Adverse EffectIntellectual Property, (iB) refrain from charging fees or other consideration, or limit the fees or consideration that it may charge, in connection with their material proprietary Software, (C) grant any license or other right to decompile or reverse-engineer any of their material proprietary Software or (D) permit any Person to make derivative works of any of their material proprietary Software. The Company and its Subsidiaries have sufficient rights complied in all material respects with their respective obligations arising under any open source licenses relating to use all their material proprietary Software. None of the Company’s or its Subsidiaries’ material proprietary Software is subject to any escrow agreement or similar contingent obligation to disclose any of their material proprietary Software in source code format.
(ix) The IT Assets owned, including middleware, databases, and systems, information technology equipment, and associated documentation used or held for use in connection with the operation of the business of (including through cloud-based or other third-party service providers) by the Company and or any of its Subsidiaries (“IT Assets”), (iiA) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of otherwise as required by the Company and or any of its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its SubsidiariesSubsidiaries in connection with their respective businesses, (iiiB) the IT Assets have not materially malfunctioned or failed to function since the Company Incorporation DateDecember 31, to the Knowledge of the Company, do not contain any viruses, 2018 and (C) are free from material bugs, faults defects, “back doors,” “drop dead devices,” “time bombs,” “Trojan horses,” “viruses,” “worms,” “spyware” (in each case, as such terms are commonly understood in the software industry) or any other devices disabling or effects that (A) enable malicious code. Since December 31, 2018, there has been no material unauthorized access to or assist any Person to access without authorization or disable or erase the misuse of such IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the . The Company and its Subsidiaries have taken commercially implemented reasonable steps to provide for the remote-site back-up of data backup and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery technology consistent with best industry practices to protect the confidentiality, integrity and business continuity planssecurity of such IT Assets, procedures and facilities, as applicable.
(vx) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, (vi) the The Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is in compliance complied in all material respects with all applicable Privacy Laws pertaining and Company Privacy Commitments and, to the Company’s Knowledge, no circumstance has arisen in which Privacy Laws, or any applicable guidance or codes of practice promulgated under Privacy Laws, would require the Company or any of its Subsidiaries to notify a Governmental Entity of any actual or suspected unauthorized acquisition of or access to Personal Information. Since December 31, 2018, the Company and its Subsidiaries have not received any written notice, order, inquiry, investigation, complaint or other communication alleging non-compliance with any Privacy Laws or Company Privacy Commitments.
(ixi) data securityThe Company and its Subsidiaries have implemented and maintain a written information security program that complies with Privacy Laws and Company Privacy Commitments and contains commercially reasonable organizational, cybersecurityphysical, privacyadministrative and technical measures, consistent in all material respects with best industry practices, and have otherwise taken all steps reasonably necessary, to ensure that Personal Information processed, collected, stored, transferred or otherwise used (ii“Processed”) by or on behalf of the collectionCompany or any of its Subsidiaries is protected against loss, storagetheft, misuse, or unauthorized access, use, accessmodification or disclosure. There has been no material loss, disclosuretheft, processingmisuse of, securityor unauthorized access to, and transfer of personal dataor acquisition, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) use, modification or disclosure of, such Personal Information Processed by or on behalf of the Seller Disclosure LetterCompany or any of its Subsidiaries. The Company and its Subsidiaries require, pursuant to valid, written Contracts, any Person who receives or Processes Personal Information from or on behalf of the Company or its Subsidiaries to comply with all applicable Privacy Laws and Company Privacy Commitments.
(xii) For purposes of this Agreement, the Company Entities do not following terms have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United States.following meanings:
Appears in 1 contract
Samples: Merger Agreement (CONMED Corp)
Intellectual Property; Data Privacy. (a) Each of the Company and its Subsidiaries owns, is licensed to use, pursuant to valid, enforceable and binding Contracts, or otherwise has the right to use all Intellectual Property used, held for use or necessary for the operation of the business of the Company and its Subsidiaries (collectively, the “Company Intellectual Property”) free and clear of all Liens (other than Permitted Liens), except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Schedule 3.17(a) of the Seller Disclosure Letter 4.13 sets forth a true and complete list of the following which are owned or purported to be owned by the Company or any of its Subsidiariesall United States and foreign: (i) patents issued Patents and patent Patent applications, (ii) registered trademarks Trademark registrations (including material domain names) and applications thereforTrademark applications, and (iii) registered copyrights Copyright registrations and applications thereforCopyright applications, and (iv) domain name registrations ((i) - (iv)in each case, the “Company Registered IP”). Except as would not, individually that are owned by or filed in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance name of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) none of the Company Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries (“Company Owned such Intellectual Property, the “Registered IP”) (A) has been adjudged invalid or unenforceable in whole or in part, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceability, and (ii) to the Knowledge of the Company, all Company ). All material Registered IP is in effect and subsisting, in full force and effect, and, to the Knowledge of the Company, valid and enforceable. All necessary registration, maintenance and all renewal fees and other maintenance fees in connection with any material item of Registered IP have been paid. There exist , and to the Company’s Knowledge, no material contractual restrictions on the disclosureRegistered IP has been adjudged invalid or unenforceable by a Governmental Authority. The Company or one of its Subsidiaries exclusively owns all right, title and interest in and to each item of material Owned IP. The Company and its Subsidiaries own, in each case free of all Liens other than Permitted Liens, or have a license to or other right to use, license all of the Intellectual Property used in the conduct of their respective businesses; provided that the foregoing is not a representation or transfer warranty with respect to infringement, misappropriation or any other violation of any Company Owned Intellectual PropertyProperty (which is addressed below in this Section 4.13).
(cb) Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, No Proceeding is (i) pending or threatened in writing against the Company or any of its Subsidiaries alleging that any of the Company or any of its Subsidiaries is infringing, misappropriating or otherwise violating any Person’s Intellectual Property (including in the form of any unsolicited offers to license any Person’s Intellectual Property) or (ii) pending or threatened in writing by any of the Company or any of its Subsidiaries alleging that any Person is infringing, misappropriating or otherwise violating any Owned IP. The conduct of the business businesses of the Company and its Subsidiaries as currently conducted does not infringe uponinfringe, misappropriate or otherwise violate, and in the past five (5) years has not, since the Company Incorporation Date infringed uponnot infringed, misappropriated, or otherwise violated, the Intellectual Property rights of any Third Party Person and (iib) no Legal Action is pending, asserted in writing, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing uponinfringing, misappropriating or otherwise violatingviolating any Owned IP.
(c) The Company and each of its Subsidiaries have taken actions reasonable under the circumstances to maintain and protect all of the Owned IP (including the secrecy and confidentiality of all material Trade Secrets included therein). Each Person who has participated in the authorship, conception, creation, reduction to practice, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, development of any Intellectual Property owned or purported to be owned by the Company or its Subsidiaries has executed and delivered to the Company or the applicable Subsidiary a valid and enforceable written contract (or has obligations by operation of law) providing for (i) the confidentiality and non-disclosure by such Person of all material Trade Secrets included in the Owned IP and (ii) the assignment by such Person to the Company or the applicable Subsidiary of all right, title, and interest in and to such Intellectual Property. To the Knowledge of the Company, no Person is in material breach of any of its Subsidiariescontract referenced in this section.
(d) Except as would not, individually or None of the software included in the aggregatematerial Owned IP is subject to any “open source”, reasonably be expected to have “copyleft” or analogous license (including any license approved by the Open Source Initiative and listed at xxxx://xxx.xxxxxxxxxx.xxx/licenses, GPL, AGPL or other open source software license) in a Company Material Adverse Effectmanner or relation that requires any public distribution of any such software, or creates obligations for the Company and or any of its Subsidiaries have taken reasonable steps to grant to any third party any rights or immunities under any Owned IP (including any patent non-asserts or patent licenses), or impose any present economic limitations on the Company’s or its Subsidiaries’ commercial exploitation thereof. No material source code included in accordance with normal industry practice the Owned IP has been disclosed, licensed, released, distributed, or made available to maintain or for any Person, and protect the confidentiality of all Company Intellectual Property that is material no Person has been granted any rights thereto, and no Person has agreed to the business disclose, license, release, deliver, or otherwise grant any right thereto under any circumstance (in each case other than to employees, contractors or consultants of the Company and or its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice pursuant to written confidentiality or non-disclosure agreements or similar obligations by operation of law). No material source code included in the Owned IP has been escrowed.
(e) The Company and that its Subsidiaries maintain and enforce commercially reasonable policies and procedures regarding cyber-security, data privacy, protection and security. The Company and its Subsidiaries are, and since January 1, 2019 have been, in compliance in all material respects with (i) all applicable Laws, regulations, and generally accepted industry standards, (ii) their own published or binding internal policies, and (iii) agreements the Company or any of its Subsidiaries have entered into or are otherwise bound, in each case of (i) through (iii) to the extent governing or relating to data privacy, data security, or the use and processing of personal information and applicable to the Company or any of its Subsidiaries (collectively, “Data Security Requirements”). No Proceeding is pending or threatened in writing against the Company or any of its Subsidiaries alleging a violation of any Person’s privacy rights or personal information or any Data Security Requirement in connection with the conduct of their respective businesses. There has been (1) no notice issued by or on behalf of the Company or its Subsidiaries to any Governmental Authority or any other Person, and (2) to the Knowledge of the Company, valid and enforceable.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of no circumstance requiring the Company and or any of its Subsidiaries to notify a Governmental Authority or any other Person, in each case of (1) and assigns to the Company (2) in respect of any Security Incident or one actual or alleged violation of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rightsany Data Security Requirements.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the The Company and each of its Subsidiaries have sufficient rights taken commercially reasonable actions to use all Softwareprotect the confidentiality, including middleware, databases, integrity and systems, information technology equipment, and associated documentation used or held for use in connection with the operation security of the business Company’s and each of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the Subsidiaries’ IT Assets operate against any unauthorized use or access and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation Date, to the Knowledge of the Company, do not contain since January 1, 2019 there have been no material Security Incidents with respect to any viruses, bugs, faults of the Company’s or its Subsidiaries’ IT Assets (or any data or other devices information or effects that (A) enable transactions stored or assist any Person to access without authorization contained therein or disable processed or erase the transmitted thereby). The IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide Assets are sufficient for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries as currently conducted in all material respects. The Company and each of its Subsidiaries have in place taken commercially reasonable disaster recovery measures, consistent with current industry standards for similarly sized and situated companies, designed (i) to preserve and maintain the performance, security, confidentiality and integrity of the IT Assets (and all data or other information or transactions stored or contained therein or processed or transmitted thereby) in all material respects against any unauthorized use, access, interruption, modification or corruption, and (ii) to ensure that all IT Assets are (A) functional and operate and run in a reasonable and efficient business continuity plansmanner in all material respects, procedures and facilities(B) free from any material virus, (v) malware or material programming, design or documentation error or corruption of material defect. Since January 1, 2019, there have been no Person has gained unauthorized access to failures, breakdowns or continued substandard performance of any IT Assets since that have caused the material disruption or material interruption in the operation of the business of the Company Incorporation Date, (vi) the or any of its Subsidiaries that have not been remedied in all material respects. The Company and its Subsidiaries have maintainedimplemented, continue to maintain, maintained and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with tested commercially reasonable standards disaster recovery procedures and requirementsfacilities for their businesses.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) data security, cybersecurity, privacy, and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) of the Seller Disclosure Letter, the Company Entities do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United States.
Appears in 1 contract
Intellectual Property; Data Privacy. (a) Each of the The Company and its Subsidiaries ownssubsidiaries own, is licensed possess, license or have other rights to use, pursuant to validall confidential information, enforceable formulas, designs, devices, research and binding Contractsdevelopment, methods, processes, compositions and other trade secrets, whether or otherwise has the right to use not patentable; and patented and patentable designs and inventions, all Intellectual Property useddesign, held for use or necessary for the operation plant and utility patents, letters patent, utility models, pending patent applications and provisional applications and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, reexaminations and renewals of the business of the Company such patents and its Subsidiaries applications, trade and service marks, trade and service xxxx registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Company Intellectual Property”) free and clear necessary for the conduct of the Company’s business in all Liens (other than Permitted Liens), except material respects as would not, individually now conducted or as proposed in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Schedule 3.17(a) of the Seller Disclosure Letter sets forth a true and complete list of the following which are owned or purported SEC Filings to be conducted.
(a) Except as described in the SEC filings, there are no rights of third parties to any such Intellectual Property owned by the Company and its subsidiaries, including no liens, security interests or any of its Subsidiaries: (i) patents and patent applications, (ii) registered trademarks and applications therefor, (iii) registered copyrights and applications therefor, and (iv) domain name registrations ((i) - (iv), the “Company Registered IP”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions do not and will not encumber, impair or extinguish any of the Company Intellectual Property.
other encumbrances; (b) Except as would notto the Company’s Knowledge, individually there is no material infringement by third parties of any such Intellectual Property; (c) there is no pending, or to the Company’s Knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property; (d) there is no pending or, to the aggregateCompany’s Knowledge, reasonably be expected threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property, including interferences, oppositions, reexaminations or government proceedings; (e) to have a Company Material Adverse Effectthe Company’s Knowledge, (i) none of the Company Company’s Intellectual Property owned as currently owned, licensed or purported to be owned used by the Company or any proposed to be used, and the Company’s conduct of its Subsidiaries (“business as currently conducted and proposed to be conducted do not infringe, violate or misappropriate the Intellectual Property of any Person. The Company Owned Intellectual Property”) (A) has not received any communication, and no action has been adjudged invalid instituted, settled or, to the Company’s Knowledge, threatened that alleges any such infringement, violation or unenforceable in whole or in part, or (B) is the subject of any cancellation or reexamination proceeding or any other proceeding challenging its ownership, use, registrability, validity and enforceabilitymisappropriation, and (ii) to the Knowledge none of the Company, all ’s Intellectual Property are subject to any outstanding governmental order; (f) each employee and consultant of the Company Registered IP is subsisting, in full force and effect, has entered into an invention assignment agreement with the Company and, to the Knowledge of the Company’s Knowledge, valid and enforceable, and all renewal fees and other maintenance fees have been paid. There exist no material contractual restrictions on the disclosure, use, license or transfer of any Company Owned Intellectual Property.
(c) Except as set forth in Schedule 3.17(c) of the Seller Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the conduct of the business employee of the Company and its Subsidiaries does not infringe upon, misappropriate is in or otherwise violate, and has not, since the Company Incorporation Date infringed upon, misappropriated, or otherwise violated, the Intellectual Property rights been in violation of any Third Party term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non- solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company; and (iig) no Legal Action is pending, asserted in writing, or to the Company’s Knowledge of the Company, threatened against the Company (but without any duty to perform a special inquiry or any of its Subsidiaries that the conduct of the business of the Company or its Subsidiaries infringes upon, misappropriates or otherwise violates the Intellectual Property rights of any Third Party. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating, or has, since the Company Incorporation Date, infringed upon, misappropriated, or otherwise violated, any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effectsearch), the Company has disclosed to the United States Patent and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain and protect the confidentiality of Trademark Office all Company Intellectual Property information that it reasonably believes is material to the business patentability of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof. Except as would not, individually or all non-provisional patent applications included in the aggregate, reasonably be expected to have a Company Material Adverse Effect, none of the Company Owned Intellectual Property that is material to the business of the Company and its Subsidiaries and the value of which is contingent upon maintaining the confidentiality thereof, has been disclosed other than to Third Parties that are bound by customary, written confidentiality agreements entered into in the ordinary course of business consistent with past practice and that are, to the Knowledge of the Company, valid and enforceableas they currently exist.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Persons who have contributed, developed or conceived any Company Owned Intellectual Property have done so pursuant to a valid and enforceable Contract (subject to enforceability exceptions for bankruptcy and insolvency and subject to principles of equity) that protects the confidential information of the Company and its Subsidiaries and assigns to the Company (or one of its Subsidiaries, as applicable) exclusive ownership of the Person’s contribution, development or conception, other than Intellectual Property excluded by Law or non-assignable moral rights.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have sufficient rights to use all Software, including middleware, databases, and systems, information technology equipment, and associated documentation used or held for use in connection with the operation of the business of the Company and its Subsidiaries (“IT Assets”), (ii) in each case, the IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and are sufficient or configurable to effectively perform all operations necessary for the current operation of the business of the Company and its Subsidiaries, and all IT Assets are owned or licensed under valid licenses and operated by and are under the control of the Company and its Subsidiaries, (iii) the IT Assets have not materially malfunctioned or failed since the Company Incorporation Date, to the Knowledge of the Company, do not contain any viruses, bugs, faults or other devices or effects that (A) enable or assist any Person to access without authorization or disable or erase the IT Assets, or (B) otherwise materially adversely affect the functionality of the IT Assets, (iv) the Company and its Subsidiaries have taken commercially reasonable steps to provide for the remote-site back-up of data and information critical to the conduct of the business of the Company and its Subsidiaries and have in place commercially reasonable disaster recovery and business continuity plans, procedures and facilities, (v) no Person has gained unauthorized access to any IT Assets since the Company Incorporation Date, (vi) the Company and its Subsidiaries have maintained, continue to maintain, and caused their vendors to maintain, safeguards, security measures and procedures against the unauthorized access, disclosure, destruction, loss, or alteration of customer data or information (including any personal or device-specific information) in its possession or control that comply with any applicable contractual and legal requirements and meet industry standards, and (vii) the Company and its Subsidiaries have in place with the third-party owners and operators of all data centers which provide services related to the business of the Company and its Subsidiaries written agreements that ensure that such Third Parties adhere to and are in compliance with commercially reasonable standards and requirements.
(g) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Laws pertaining to (i) data security, cybersecurity, privacy, and (ii) the collection, storage, use, access, disclosure, processing, security, and transfer of personal data, to the extent that it is subject to same. Except as set forth in Schedule 3.17(g) of the Seller Disclosure Letter, the Company Entities do not have any premises, employees or tangible assets, and does not conduct any business activities, in any country other than the United States.
Appears in 1 contract
Samples: Securities Purchase Agreement (Silence Therapeutics PLC)
