Common use of Intellectual Property; Data Privacy Clause in Contracts

Intellectual Property; Data Privacy. (a) Section 3.10(a) of the Athena Disclosure Letter identifies, as of the date of this Agreement, each material item of Registered IP which Athena or any of its Subsidiaries owns or purports to own (the “Athena Material Registered IP”). The Athena Material Registered IP is subsisting, and to the Knowledge of Athena, none of the Athena Material Registered IP is invalid or unenforceable. (b) The Athena Companies solely and exclusively own all right, title, and interest to and in the material Athena IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Athena Companies have valid rights to use, pursuant to an inbound Athena IP License (or Other IP Licenses), all other material Intellectual Property Rights used by or necessary for the conduct of the Athena Companies’ business (provided that the foregoing is not a representation with respect to infringement, misappropriation or other violation of third party Intellectual Property Rights, which is covered under Section 3.10(f)). (c) To the Knowledge of Athena, the Athena Companies have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Athena IP. No such trade secret material to Athena as presently conducted and presently proposed to be conducted has been authorized to be (or has actually been) disclosed by the any of the Athena Companies to any other Person, other than pursuant to a written non-disclosure agreement (or obligations by operation of law) restricting the disclosure and use thereof. (d) The Athena Companies have executed valid written agreements with each of their former and current employees, consultants and independent contractors (or such Persons have obligations by operation of law) to the extent engaged in the creation or development of any material Athena IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets of the Athena Companies in confidence both during and after such Person’s employment or retention, as applicable; and (ii) assigned to Athena (or its applicable Subsidiary) all of such Person’s rights, titles and interests in and to all such Athena IP, in each case created or developed for the Athena Companies in the course of such Person’s employment or retention thereby. To the Knowledge of Athena, no party thereto is in default, violation or breach of any such agreements, except where such default, violation or breach would not be material to Athena. No government funding and no facilities of a university, college, other educational institution or research center were used in the development of any material Athena IP where, as a result of such funding or the use of such facilities, such government or university entity or organization has any material rights, title or interest in such Athena IP. (e) To the Knowledge of Athena, as of the date of this Agreement, no Person has infringed, misappropriated, or otherwise violated any Athena IP in any material respect since the Applicable Date, and, as of the date of this Agreement, no claim or Legal Proceeding involving or alleging any of the foregoing is pending or, to the Knowledge of Athena, is threatened in writing by any of the Athena Companies against any other Person. (f) To the Knowledge of Athena, the use and practice of the Athena IP and the conduct of the business of Athena and its Subsidiaries (including the Athena Companies, and including prior to giving effect to the Contemplated Transactions contemplated by the Distribution Agreement) as conducted since the Applicable Date, have not infringed, misappropriated, or otherwise violated any Intellectual Property Right of any other Person in any material respect, and, as of the date of this Agreement, no claim or Legal Proceeding is pending or, to the Knowledge of Athena, has since the Applicable Date been threatened in writing against any of the Athena Companies by any other Person either (i) involving or alleging any of the foregoing, or (ii) challenging the ownership, use, validity or enforceability of any material Athena IP. (g) Neither Athena nor any of its Subsidiaries have used Open Source Code in connection with any Software included in the Athena IP developed, licensed, distributed, used or otherwise exploited by any of the Athena Companies in a manner that has resulted or will result in a requirement that any material proprietary source code included in the Athena IP (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making modifications or derivative works, or (3) be redistributable at no charge. (h) To the Knowledge of Athena, (i) the Athena Companies have, at all times since the Applicable Date, materially complied with, and, as of the date of this Agreement, no Person has asserted a written claim against any of the Athena Companies alleging a material violation of, any public-facing privacy policy of any of the Athena Companies or applicable Privacy Laws, and (ii) as of the date of this Agreement, there have been no unauthorized intrusions or breaches of the security of any of the Athena Companies’ IT Systems resulting in any material data breach, unauthorized access to or disclosure of, or other material misuse or breach of any Personal Data under the possession or control of Athena or its Subsidiaries (including the Athena Companies) or collected by or on their behalf. Athena (or its Subsidiaries) has implemented commercially reasonable disaster recovery and business continuity plans, and taken actions consistent with such plans in all material respects, intended to safeguard the IT Systems of Athena and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of Athena in all material respects in the event of a disaster or IT Systems outage. (i) This Section 3.10 contains the sole and exclusive representations and warranties of Athena and Merger Sub under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.

Intellectual Property; Data Privacy. (a) Section 3.10(a2.10(a) of the Athena Everest Disclosure Letter identifies, as of the date of this Agreement, each material item of Registered IP which Athena or any of its Subsidiaries owns or purports to own included in the Newco Owned IP (the “Athena Newco Material Registered IP”). The Athena Newco Material Registered IP is subsisting, and to the Knowledge of AthenaEverest, none of the Athena Newco Material Registered IP is invalid or unenforceable. (b) The Athena Newco Companies solely and exclusively own all right, title, and interest to and in the material Athena Newco Owned IP free and clear of any Encumbrances other than Permitted Encumbrances, and the Athena Newco Companies have valid rights to use, pursuant to an inbound Athena Newco IP License (or under the Intellectual Property Matters Agreement or Other IP Licenses), all other material Intellectual Property Rights used by in or necessary for the conduct of the Athena Companies’ business Newco Business (provided that the foregoing is not a representation with respect to infringement, misappropriation or other violation of third party Intellectual Property Rights, which is covered under Section 3.10(f2.10(f)). (c) To the Knowledge of AthenaEverest, Everest and each of its Subsidiaries (including the Athena Companies Newco Companies) have taken commercially reasonable steps to maintain the confidentiality of the material trade secrets included in the Athena Newco IP. No such trade secret material to Athena the Newco Business as presently conducted and presently proposed to be conducted has been authorized to be (or has actually been) disclosed by the Everest or any of its Subsidiaries (including the Athena Companies Newco Companies) to any other Person, other than pursuant to a written non-disclosure agreement (or obligations by operation of law) restricting the disclosure and use thereof. (d) The Athena Companies have Everest (or its applicable Subsidiary) has executed valid written agreements with each of their its former and current employees, consultants and independent contractors (or such Persons have obligations by operation of law) to the extent engaged in the creation or development of any material Athena Newco IP, pursuant to which each such Person has: (i) agreed to hold all material trade secrets of the Athena Companies Newco Business in confidence both during and after such Person’s employment or retention, as applicable; and (ii) assigned to Athena Everest (or its applicable Subsidiary) all of such Person’s rights, titles and interests in and to all such Athena Newco IP, in each case created or developed for Everest (or its applicable Subsidiary, including the Athena Companies Newco Companies) in the course of such Person’s employment or retention thereby. To the Knowledge of AthenaEverest, no party thereto is in default, violation or breach of any such agreements, except where such default, violation or breach would not be material to Athenathe Newco Business. No government funding and no facilities of a university, college, other educational institution or research center were used in the development of any material Athena Newco IP where, as a result of such funding or the use of such facilities, such government or university entity or organization has any material rights, title or interest in such Athena Newco IP. (e) To the Knowledge of AthenaEverest, as of the date of this Agreement, no Person has infringed, misappropriated, or otherwise violated any Athena Newco IP in connection with the Newco Business in any material respect since the Applicable Date, and, as of the date of this Agreement, no claim or Legal Proceeding involving or alleging any of the foregoing is pending or, to the Knowledge of AthenaEverest, is threatened in writing by any of Everest or its Subsidiaries (including the Athena Companies Newco Companies) against any other Person. (f) To the Knowledge of AthenaEverest, the use and practice of the Athena Newco IP and the conduct of the business of Athena Newco Business by Everest and its Subsidiaries with respect to the Newco Business (including the Athena Newco Companies, and including prior to giving effect to the Contemplated Transactions contemplated by the Distribution Agreement) as conducted since the Applicable Date, have not infringed, misappropriated, or otherwise violated any Intellectual Property Right of any other Person in any material respect, and, as of the date of this Agreement, no claim or Legal Proceeding is pending or, to the Knowledge of AthenaEverest, has since the Applicable Date been threatened in writing against any of Everest or its Subsidiaries (including the Athena Companies Newco Companies) by any other Person either (i) involving or alleging any of the foregoing, or (ii) challenging the ownership, use, validity or enforceability of any material Athena Newco IP. (g) Neither Athena Everest nor any of its Subsidiaries (with respect to the Newco Business) nor the Newco Companies have used Open Source Code in connection with any Software included in the Athena Newco IP developed, licensed, distributed, used or otherwise exploited by Everest or any of its Subsidiaries (including the Athena Companies Newco Companies) in a manner that has resulted or will result in a requirement that any material proprietary source code included in the Athena Newco IP (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making modifications or derivative works, or (3) be redistributable at no charge. (h) To the Knowledge of AthenaEverest, (i) Everest and its Subsidiaries (including the Athena Companies Newco Companies) have, at all times since the Applicable Date, materially complied with, and, as of the date of this Agreement, no Person has asserted a written claim against any of Everest or its Subsidiaries (including the Athena Companies Newco Companies) in connection with the Newco Business alleging a material violation of, any public-facing privacy policy of Everest or any of its Subsidiaries (including the Athena Companies Newco Companies) or applicable Privacy Laws, and (ii) as of the date of this Agreement, there have been no unauthorized intrusions or breaches of the security of Everest’s or any of its Subsidiaries’ (with respect to the Athena Newco Business) or the Newco Companies’ IT Systems resulting in any material data breach, unauthorized access to or disclosure of, or other material misuse or breach of any Personal Data under the possession or control of Athena Everest or its Subsidiaries (including the Athena Newco Companies) or collected by or on their behalfbehalf in connection with the Newco Business. Athena Everest (or its Subsidiaries, as applicable to the Newco Business) has implemented commercially reasonable disaster recovery and business continuity plans, and taken actions consistent with such plans in all material respects, intended to safeguard the IT Systems of Athena the Newco Business and material data and information (including any Personal Data) contained or stored therein, and enable the ongoing conduct of Athena the Newco Business in all material respects in the event of a disaster or IT Systems outage. (i) This Section 3.10 2.10 contains the sole and exclusive representations and warranties of Athena Everest and Merger Sub Newco under this Agreement with respect to infringement, misappropriation or other violation of Intellectual Property Rights.