Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a) of the Seller Disclosure Letter sets forth a list of all (i) Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, included in the Company-Owned IP Rights (the “Company Registered IP”) and (ii) material Software included in the Company-Owned IP Rights. (b) The Company Entities, as the case may be, exclusively own all right, title and interest in and to the Company-Owned IP Rights, free and clear of all Liens except for Permitted Liens. Except as would not be material to the Company Entities taken as a whole, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP. (c) None of the Company-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company Entities. There is no Action pending or, to the Seller’s Knowledge, threatened against any Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities have not received any written notices regarding the foregoing. (d) Since the Look-back Date, to the Seller’s Knowledge, there has been and there is no written allegation made by any Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights by any Person. (e) Except as would not reasonably be expected to be material to the Company Entities taken as a whole, the operation of any Company Entity as currently conducted as of the date hereof, and the operation of any Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No Company Entity has received any written notice since the Look-back Date alleging that the operation of any Company Entity infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Company Entity license any Intellectual Property Rights). There is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity alleging that the operation of the business of any Company Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third party. (f) Except as set forth on Section 4.11(f) of the Seller Disclosure Letter and as would not reasonably be expected to be material to the Company Entities taken as a whole, the Company Entities have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under the direction or supervision of, the Company Entities (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities do not otherwise own by operation of law. No Contributor owns or, to the Seller’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP Rights. Except as would not reasonably be expected to be material to the Company Entities taken as a whole, each Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company Entity, from all current and former Contributors. (g) The Company Entities have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP Rights, and to the Seller’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Company Entities have entered into reasonable confidentiality agreements with each Person having access to the Company Entities’ Trade Secrets. To the Seller’s Knowledge, no such Person is in violation of any such agreement. (h) The Company Entities exclusively own all right, title and interest in and to, or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company Entities’ business (subject to Section 4.11(b) with respect to the Company-Owned IP Rights) and all such Company IP Rights shall be owned or available for use by the Company Entities immediately after the Closing on terms and conditions identical to those under which the Company Entities owned or used such Company IP Rights immediately prior to the Closing. The Company Entities may exercise, transfer, or license the Company IP Rights without material restriction or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict or impair the right of the Company Entities to transfer, alienate, enforce, own, use or license, or affect the validity or enforceability of, any Company-Owned IP Rights. (i) The Company Entities (i) have taken commercially reasonable steps to protect the confidentiality, integrity and security of the Company Systems and have implemented and comply with commercially reasonable written data and information security, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and (ii) have taken commercially reasonable steps to assess and test such plans and procedures, and such assessments and tests have not identified any material issues that remain unremedied. Since the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities as presently conducted. (j) The Company Entities (and, to the Seller’s Knowledge, any third Person using Personal Data on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal Data), the Company Entities’ Contracts, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company Entities’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal Data, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity relating to any of the foregoing. The Company Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company Entities against any unauthorized use, access or disclosure.
Appears in 2 contracts
Samples: Business Combination Agreement (Goal Acquisitions Corp.), Business Combination Agreement (Goal Acquisitions Corp.)
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a3.12(a) of the Seller Disclosure Letter sets forth a list of all (i) Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, included in the Company-Owned IP Rights (the “Company Registered IP”) and (ii) material Software included in the Company-Owned IP Rights.
(b) The Company EntitiesTarget Companies, as the case may be, exclusively own all right, title and interest in and to the Company-Owned IP Rights, free and clear of all Liens except for Permitted Liens. Except as would not be material to the Company Entities Target Companies taken as a whole, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities Target Companies are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP.
(c) None of the Company-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company EntitiesTarget Companies. There is no Action pending or, to the Seller’s Knowledge, threatened against any Target Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities Target Companies have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the Seller’s Knowledge, there has been and there is no written allegation made by any Target Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights by any Person.
(e) Except as would not reasonably be expected to be material to the Company Entities Target Companies taken as a whole, the operation of any Target Company Entity as currently conducted as of the date hereof, and the operation of any Target Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No Target Company Entity has received any written notice since the Look-back Date alleging that the operation of any Target Company Entity infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Target Company Entity license any Intellectual Property Rights). There is no Action pending, or, to the Seller’s Knowledge, threatened against any Target Company Entity alleging that the operation of the business of any Target Company Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third party.
(f) Except as set forth on Section 4.11(f3.12(f) of the Seller Disclosure Letter and as would not reasonably be expected to be material to the Company Entities Target Companies taken as a whole, the Company Entities Target Companies have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under the direction or supervision of, the Company Entities Target Companies (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities Target Companies do not otherwise own by operation of law. No Contributor owns or, to the Seller’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP Rights. Except as would not reasonably be expected to be material to the Company Entities Target Companies taken as a whole, each Target Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company EntityTarget Company, from all current and former Contributors.
(g) The Company Entities Target Companies have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP Rights, and to the Seller’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Company Entities Target Companies have entered into reasonable confidentiality agreements with each Person having access to the Company EntitiesTarget Companies’ Trade Secrets. To the Seller’s Knowledge, no such Person is in violation of any such agreement.
(h) The Company Entities Target Companies exclusively own all right, title and interest in and to, or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company EntitiesTarget Companies’ business (subject to Section 4.11(b3.12(b) with respect to the Company-Owned IP Rights) and all such Company IP Rights shall be owned or available for use by the Company Entities Target Companies immediately after the Closing on terms and conditions identical to those under which the Company Entities Target Companies owned or used such Company IP Rights immediately prior to the Closing. The Company Entities Target Companies may exercise, transfer, or license the Company IP Rights without material restriction or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict or impair the right of the Company Entities Target Companies to transfer, alienate, enforce, own, use or license, or affect the validity or enforceability of, any Company-Owned IP Rights.
(i) The Company Entities Target Companies (i) have taken commercially reasonable steps to protect the confidentiality, integrity and security of the Company Systems and have implemented and comply with commercially reasonable written data and information security, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and (ii) have taken commercially reasonable steps to assess and test such plans and procedures, and such assessments and tests have not identified any material issues that remain unremedied. Since the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied in all material respects. The Company Entities Target Companies have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities Target Companies as presently conducted.
(j) The Company Entities Target Companies (and, to the Seller’s Knowledge, any third Person using Personal Data Information on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal DataInformation), the Company EntitiesTarget Companies’ Contracts, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Target Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company EntitiesTarget Companies’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal DataInformation, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Target Company Entity relating to any of the foregoing. The Company Entities Target Companies have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data Information used by the Company Entities Target Companies against any unauthorized use, access or disclosure.
Appears in 2 contracts
Samples: Business Combination Agreement (Alternus Clean Energy, Inc.), Business Combination Agreement (Clean Earth Acquisitions Corp.)
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a2.17(a) of the Seller Disclosure Letter sets forth contains a complete and accurate list as of the Execution Date of all Registered Intellectual Property Rights that are included in the Transferred Intellectual Property (collectively, “Registered IP”). Each item of Registered IP is subsisting and the granted, registered and unexpired items included therein are, to the Knowledge of Seller, valid and enforceable. Immediately after the Closing, the Vantive Group Entities will (i) Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, included in the Company-Owned IP Rights (the “Company Registered IP”) and (ii) material Software included in the Company-Owned IP Rights.
(b) The Company Entities, as the case may be, exclusively own all right, title and interest in and to the Company-Owned IP Rights, Transferred Intellectual Property (other than any Transferred Intellectual Property that constitutes a Delayed Vantive Asset) free and clear of all Liens except for (other than Permitted Liens. ) and (ii) have a license or other right to use or receive the benefits of (including pursuant to this Agreement or an Ancillary Agreement, as applicable), all other Intellectual Property Rights that are used in the Business as currently conducted, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Except as would not not, individually or in the aggregate, reasonably be material expected to the Company Entities taken as have a wholeMaterial Adverse Effect, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP.
(c) None conduct of the Company-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company Entities. There is no Action pending or, to the Seller’s Knowledge, threatened against any Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the Seller’s Knowledge, there has been and there is no written allegation made by any Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights by any Person.
(e) Except as would not reasonably be expected to be material to the Company Entities taken as a whole, the operation of any Company Entity as currently conducted as of the date hereof, and the operation of any Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not not, since March 31, 2021, infringed, misappropriated or otherwise violated the Intellectual Property Rights of any third Person, and since March 31, 2021, neither Seller nor any of its Subsidiaries has received notice of any Action (including cease and desist letters and invitations to take a license) alleging the same and (ii) no Action (including any oppositions, derivations, interferences or re-examinations) is pending or threatened in writing that challenges the validity, ownership or enforceability of any Transferred Intellectual Property.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, to the Knowledge of Seller, no third Person is infringing, misappropriating or otherwise violating, or, since March 31, 2021, has infringed, misappropriated or otherwise violated, the Transferred Intellectual Property, and there is no, and since March 31, 2021 has been no, pending Action alleging the same.
(d) Seller and its Subsidiaries (including the Vantive Group Entities) maintain and implement commercially reasonable practices to protect the confidentiality and secrecy of any material Trade Secrets (i) included in the Transferred Intellectual Property Rights or (ii) provided to the Vantive Group Entities in connection with the Business under obligations of confidentiality.
(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no source code of any Vantive Software has been disclosed, escrowed or made available to or for any third Person (and neither Seller nor any of its Subsidiaries has agreed to do the same), except under a written escrow Contract or to regulators, employees, contractors or other Personthird-party service providers under a duty of confidentiality. No Company Entity has received Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no Vantive Software incorporates, includes, embeds, links with or is distributed with, open source software in a manner that would, as a result of any written notice since requirement in any license identified as an open source software license by the Look-back Date alleging Open Source Initiative (xxx.xxxxxxxxxx.xxx/) with respect to such open source software, (i) restrict Seller or its Subsidiaries from charging a fee for such Vantive Software or (ii) require that the operation source code to any Vantive Software be licensed to any Person, including for the purpose of any Company Entity infringes, misappropriates, making modifications or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Company Entity license any Intellectual Property Rights). There is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity alleging that the operation of the business of any Company Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third partyderivative works.
(f) Immediately after the Closing, the Vantive Group Entities will (i) exclusively own all Transferred IT Assets, free and clear of all Liens (other than Permitted Liens), and (ii) have a valid license or other right to use or receive the benefit of (including pursuant to this Agreement or an Ancillary Agreement, as applicable), all other IT Assets that are used in or necessary for the Business as currently conducted, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(g) Except as would not, individually or in the aggregate, be material and adverse to the Vantive Group Entities (taken as a whole), (i) the patents and patent applications set forth on in Section 4.11(f2.17(a) of the Seller Disclosure Letter and as would not reasonably be expected to be material to the Company Entities taken as a whole, the Company Entities have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under the direction or supervision of, the Company Entities (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, constitute all of the patents and patent applications owned by Seller and its Subsidiaries that are Related to the Business as of the date hereof, and (ii) the trademark registrations and trademark applications set forth in Section 2.17(a) of the Seller Disclosure Letter constitute all of the trademark registrations and trademark applications owned by Seller and its Subsidiaries that are Related to the Business as of the date hereof, excluding any Licensed Marks (as defined in the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, Agreement) that the Company Entities do not otherwise own by operation of law. No Contributor owns or, may be Related to the Seller’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP Rights. Except as would not reasonably be expected to be material to the Company Entities taken as a whole, each Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company Entity, from all current and former Contributors.
(g) The Company Entities have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP Rights, and to the Seller’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Company Entities have entered into reasonable confidentiality agreements with each Person having access to the Company Entities’ Trade Secrets. To the Seller’s Knowledge, no such Person is in violation of any such agreementBusiness.
(h) The Company Entities exclusively own all rightExcept as would not, title individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the conduct of the Business by Seller and interest in its Subsidiaries, and tothe Processing by them, or otherwise possess validor, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company Entities’ business Knowledge of Seller, by third parties on their behalf, of any Personal Information related to the Business, are, and have since March 31, 2021 been, in material compliance with (subject A) applicable Privacy Laws, including by the implementation of technical, physical, and administrative safeguards to Section 4.11(bprotect Personal Information against any loss or unauthorized use, access or disclosure and (B) their respective privacy and security policies, rules and procedures, including any relating to privacy, data protection and the collection and Processing of Personal Information with respect to the Company-Owned IP RightsBusiness (collectively, “Privacy Obligations”), (ii) and all such Company IP Rights shall be owned or available for use by the Company Entities immediately after the Closing on terms and conditions identical to those under which the Company Entities owned or used such Company IP Rights immediately prior since March 31, 2021, with respect to the Closing. The Company Entities may exerciseBusiness, transfer, or license the Company IP Rights without material restriction or material payment to any Person. Neither this Agreement neither Seller nor any of its Subsidiaries have received any written notice or claim (including any communication from any Governmental Entity) alleging any non-compliance with any Privacy Obligations and, to Knowledge of Seller, no such claim is pending, and (iii) Seller and its Subsidiaries are, and have since March 31, 2021, been, in compliance with the transactions contemplated hereby will restrict requirements of all contractual agreements (including HIPAA Business Associate Agreements) binding on Seller or impair its Subsidiaries concerning privacy and security of Personal Information used in connection with the right of the Company Entities to transfer, alienate, enforce, own, use or license, or affect the validity or enforceability of, any Company-Owned IP RightsBusiness.
(i) The Company Entities Since March 31, 2021 there has been no (i) vulnerability, defect, failure or malfunction of any Transferred IT Assets, (ii) breach, unauthorized access to or unauthorized use of any Transferred IT Assets (including ransomware attacks) or incident of any kind which resulted in the unauthorized access, use, theft, loss, rendering unavailable or not accessible, disclosure, transfer or destruction of any information or data contained therein or transmitted thereby (including Trade Secrets and Personal Information) and (iii) disclosure of any such breach or unauthorized access or use by Seller or its Subsidiaries to any Person or Governmental Entity that, in each case of (i), (ii) and (iii), taken individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. Since March 31, 2021, to the Knowledge of Seller, all Transferred IT Assets are free from Contaminants except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, in respect of the Transferred IT Assets, Seller and its Subsidiaries (i) have taken established, implemented, tested and maintained commercially reasonable steps to protect the confidentiality, integrity and security of the Company Systems and have implemented and comply with commercially reasonable written data and information security, business continuity backup and disaster recovery plans and procedures that are measures, reasonably consistent with industry best practices and applicable Lawspractices, and (ii) have taken commercially implemented and maintained reasonable steps to assess and test such plans appropriate administrative, technical and procedures, and such assessments and tests have not identified any material issues physical safeguards that remain unremedied. Since the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities as presently conducted.
(j) The Company Entities (and, to the Seller’s Knowledge, any third Person using Personal Data on their behalf) comply conform in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal Data), the Company Entities’ Contracts, and all applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company Entities’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal Data, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity relating to any of the foregoing. The Company Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company Entities against any unauthorized use, access or disclosureObligations.
Appears in 1 contract
Samples: Equity Purchase Agreement (Baxter International Inc)
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(aSchedule 3.13(a) of the Seller Disclosure Letter sets forth a true and complete list of all (i) issued and applied for Patents, (ii) Trademark registrations and trademark registration applications, (iii) registrations or applications for registration of any Copyrights, (iv) registered Marksor issued Designs, registered Copyrights and (v) internet domain name registrations, including any applications for any of the foregoingin each case, included in the Company-Owned IP Rights (Intellectual Property as of the “Company Registered IP”) and (ii) material Software included date of this Agreement whether in the CompanyUnited States or internationally (“Registered Owned Intellectual Property”). All of the items listed on Schedule 3.13(a) are, except as stated on Schedule 3.13(a), valid, subsisting, in full force and have not been abandoned. All applicable filing, prosecution, registration, maintenance, and renewal fees related to any subsisting and un-abandoned Registered Owned IP Rights.
(b) The Company EntitiesIntellectual Property have been paid, and all necessary documents have been filed. As of the date of this Agreement, no Owned Intellectual Property is the subject of, or has been impaired by, any Action before any Governmental Authorities challenging the ownership, validity, or enforceability thereof or any right therein or thereto. Except as the case may beset forth on Schedule 3.13(a), exclusively own all right, title and interest in and as would not reasonably be expected to be material to the Company-Precoat Subsidiaries, taken as a whole, one of the Precoat Subsidiaries is the sole and exclusive owner of all Owned IP RightsIntellectual Property, free and clear of all Liens (except for Permitted Liens), Contracts (other than any Intellectual Property Grant by a Precoat Subsidiary in connection with the provision or receipt of any product or service in the ordinary course of the Precoat Business), and Governmental Orders related to any Owned Intellectual Property. Except as would not reasonably be expected to be material to the Company Entities Precoat Subsidiaries, taken as a whole, neither this Agreement nor the consummation of the transactions under this Agreement will cause, or will give any third party the right to cause, (1) any assignment, transfer, or conveyance of any ownership or co-ownership, or any Intellectual Property Grant, in or to any Owned Intellectual Property; or (2) any termination, modification, or other change of any Intellectual Property Grant or the performance under any Intellectual Property Grant to which a Precoat Subsidiary is a party. Except as would not reasonably be expected to be material to the Precoat Subsidiaries, taken as a whole, each Precoat Subsidiary uses, exploits, or holds for use or exploitation only (i) Owned Intellectual Property and (ii) any other third-party owned Intellectual Property under an Intellectual Property Grant therefor to which such Precoat Subsidiary is a party or beneficiary. Except as would not reasonably be expected to be material to the Precoat Subsidiaries, taken as a whole, the Owned Intellectual Property and such other Intellectual Property together with the rights granted hereunder and under the Transition Services Agreement constitute all Intellectual Property necessary for the conduct of the Precoat business of each Precoat Subsidiary as presently conducted.
(b) Except as set forth on Schedule 3.13(b), or except as would not reasonably be expected to be material to the Precoat Subsidiaries, taken as a whole, (i) the Company Registered IP is subsistingPrecoat Subsidiaries are not infringing upon, validmisappropriating, diluting or otherwise violating, and enforceablehave not in the two (2) year period prior to the date of this Agreement, infringed, misappropriated, diluted or otherwise violated, any Intellectual Property of any Person, and (ii) as of the Company Entities are current in date of this Agreement, no Action is pending, and within the payment of all registration, maintenance and renewal fees with respect two (2)-year period prior to the Company Registered IPdate of this Agreement, no Action was pending, and the Precoat Subsidiaries have not received from any Person any written allegation notice, charge, complaint, claim or other written assertion asserting or threatening to assert any Action, against any Precoat Subsidiary involving or relating to any infringement, dilution or violation by, or misappropriation of, any Intellectual Property of any Person or challenging the validity, enforceability, ownership, scope or use of any Owned Intellectual Property.
(c) None To the knowledge of Seller, no Person is infringing, misappropriating, diluting, or violating any Owned Intellectual Property. As of the Company-Owned IP Rights are subject date of this Agreement, no Action is outstanding, and within the two (2)-year period prior to the date of this Agreement, none of the Precoat Subsidiaries has sent any written notice, charge, complaint, claim or other written assertion asserting or threatening to assert any Action, against any Person involving or relating to any Government Order adversely affecting the use thereof or rights thereto Intellectual Property owned by the Company Entities. There is no Action pending or, to the Seller’s Knowledge, threatened against any Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities have not received any written notices regarding the foregoingPerson.
(d) Since the Look-back Date, Except as would not reasonably be expected to be material to the Seller’s KnowledgePrecoat Subsidiaries, there taken as a whole, no Precoat Subsidiary has been and there is no written allegation made by accepted or received any Company Entity ofgrants from any Governmental Authority, and there has been no and there is no infringementeducational institution, misappropriation multi-national, bi-national or other violation international organization or research center that would result in, or may subject to any statutory right for, any ownership, claim or right (including license rights) to or under any Intellectual Property developed by, for or on behalf of any material Company-Owned IP Rights by any Personthe Precoat Business.
(e) Except as would not reasonably be expected to be material to the Company Entities Precoat Subsidiaries, taken as a whole, the operation Precoat Subsidiaries have consistently (i) taken commercially reasonable measures to protect and preserve all Trade Secrets included in the Owned Intellectual Property and other confidential information of any Company Entity as currently conducted as of the date hereofPrecoat Subsidiary, and (ii) protected the operation of any Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights confidentiality of any other Person. No Company Entity has received ’s Trade Secrets or other confidential information in accordance with any written notice since the Look-back Date alleging that the operation contractual or other legal obligation of any Company Entity infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Company Entity license any Intellectual Property Rights). There is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity alleging that the operation of the business of any Company Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third party.
(f) Except as set forth on Section 4.11(f) of the Seller Disclosure Letter and as would not reasonably be expected to be material to the Company Entities taken as a whole, the Company Entities have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under the direction or supervision of, the Company Entities (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities do not otherwise own by operation of law. No Contributor owns or, to the Seller’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP RightsPrecoat Subsidiary related thereto. Except as would not reasonably be expected to be material to the Company Entities Precoat Subsidiaries, taken as a whole, the Precoat Subsidiaries have not disclosed to any Person (including any employees, contractors, vendors or customers) any Trade Secrets included in the Owned Intellectual Property except under a confidentiality agreement or other legally binding confidentiality obligation, and, to the knowledge of Seller, there has not been any breach by any party to any such confidentiality agreement.
(f) Except as would not reasonably be expected to be material to the Precoat Subsidiaries, taken as a whole, each Company Entity Person who has obtained written and enforceable Contracts with respect contributed to invention disclosure and present assignments the creation or development of any Owned Intellectual Property has assigned in writing to one of the Precoat Subsidiaries all of such Person’s right, title, and interest in, to, and under all such Owned Intellectual Property Rights as applicable (to the extent such Company Entity, from all current and former Contributorsrights have not vested in a Precoat Subsidiary by operation of Law).
(g) The Company Entities Except as would not reasonably be expected to be material to the Precoat Subsidiaries, taken as a whole, no Open Source Software has been embedded in, combined with, linked to or used by any Precoat Subsidiary in connection with any Software included in the Owned Intellectual Property (“Owned Software”) a manner that that would (i) require the contribution, distribution or disclosure to any Person of any source code included in the Owned Software, (ii) require the distribution or licensing of any Owned Software for the purpose of making derivative works, or (iii) impose any limitation on the right to require consideration from or restrict further distribution of such Owned Software. No part of any Owned Software has been deposited or submitted, or is under any obligation or requirement to be deposited or submitted, into any type of escrow.
(h) Except as would not reasonably be expected to be material to the Precoat Subsidiaries, taken as a whole, the Precoat Subsidiaries have taken commercially reasonable steps to protect and maintain from contaminants (including any Trade Secrets included in the Company IP Rightsvirus, and to the Seller’s Knowledgeworm, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Company Entities have entered into reasonable confidentiality agreements with each Person having access to the Company Entities’ Trade Secrets. To the Seller’s Knowledgemalware, no such Person is in violation of any such agreement.
(h) The Company Entities exclusively own all rightroutine, title and interest in and intrusion, hacking, and/or invasion intending, seeking, designed to, or otherwise possess valid, enforceable and sufficient licenses and rights likely to permit unauthorized access to, all Company IP Rights that are material to the Company Entities’ business (subject to Section 4.11(b) with respect to the Company-Owned IP Rights) and all such Company IP Rights shall be owned or available for use by the Company Entities immediately after the Closing on terms and conditions identical to those under which the Company Entities owned or used such Company IP Rights immediately prior to the Closing. The Company Entities may exercisecorrupt, transferobtain, remove, or license the Company IP Rights without material restriction delete data or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict information or impair the right operation, functionality, or use of, or otherwise harm any hardware, network, or system) the IT Systems currently owned or controlled by them. The IT Systems are reasonably adequate and sufficient for conducting the Precoat Business, including to provide the products and services to customers in the conduct of the Company Entities to transferPrecoat Business as currently conducted. The Precoat Subsidiaries have in place commercially reasonable backup and disaster recovery plans, alienate, enforce, own, use or license, or affect procedures and facilities for the validity or enforceability of, any Company-Owned IP Rights.
(i) The Company Entities (i) IT Systems and have taken commercially reasonable steps to protect safeguard the confidentiality, integrity and security of the Company Systems and have implemented and comply with commercially reasonable written data and information securityIT Systems. Except (i) as set forth on Schedule 3.13(i), business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and or (ii) have as would not reasonably be expected to be material to the Precoat Subsidiaries, taken commercially reasonable steps to assess as a whole, the IT Systems owned and test such plans controlled by them are reasonably adequate and proceduressufficient for conducting the Precoat Business, are in good working condition and such assessments and tests have not identified materially malfunctioned or failed, or been subject to any material issues that remain unremedied. Since adverse consequence of any unauthorized intrusion or contaminant, in the Look-back Date, two (2)-year period prior to the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation date of the Company Systems or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities as presently conductedthis Agreement.
(ji) The Company Entities (and, to the Seller’s Knowledge, any third Person using Personal Data on their behalf) comply Except as set forth in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal DataSchedule 3.13(h), the Company EntitiesPrecoat Subsidiaries’ Contractsdata protection policies, operations, activities, and applicable Privacy Laws (practices, including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company Entity has received any written or, those governing and/or related to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company Entities’ information practices or the use, access, collection, retentionstorage, processing, disclosure, modification and use of Personal Information comply with, and at all times in the five (5)-year period prior to the date of this Agreement have been in compliance with, in all material respects all Privacy and Data Security Laws and all contractual obligations of the Precoat Subsidiaries. The Precoat Subsidiaries have taken commercially reasonable measures to protect the integrity, security and confidentiality of all Personal Information maintained by the Precoat Subsidiaries. No Precoat Subsidiary is subject to any contractual requirements or destruction other legal obligations that, following the Closing, would prohibit Buyer from receiving or using Personal Information in the manner in which a Precoat Subsidiary received and used such Personal Information prior to the Closing. To the knowledge of Seller, no Person (including any Governmental Authority) has made any claim or commenced any proceeding or investigation with respect to loss, damage, theft, or unauthorized access, use, modification, or other misuse of any Personal DataInformation or any failure to comply with Privacy and Data Security Laws by any Precoat Subsidiary or any of their respective employees or contractors. To the knowledge of Seller, during the five (5) year period prior to the date of this Agreement, there has been no material unauthorized intrusions or alleging a violation breaches of the security of the information technology systems used in connection with the operation of the Precoat Subsidiaries nor any material nor any material loss, damage, theft, unauthorized or illegal use or disclosure of any individual’s privacy, publicity Personal Information stored or confidentiality rights, including from secured by or for the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity relating to any of the foregoing. The Company Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company Entities against any unauthorized use, access or disclosurePrecoat Subsidiaries.
Appears in 1 contract
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a3.16(a) of the Seller Disclosure Letter Schedule sets forth a list correct and complete list, as of the date hereof, of all (i) PatentsIntellectual Property that is issued by, registered Markswith, registered Copyrights and renewed by or the subject of a pending application before any Governmental Authority or domain name registrations, including any applications for registrar and owned or purported to be owned by the Company or any of its Subsidiaries (together with all other Intellectual Property owned by or purported to be owned by the foregoingCompany or any of its Subsidiaries, included collectively, the “Owned Intellectual Property”), indicating for each item the registration or application number, registration or application date and the applicable filing jurisdiction (or, in the Company-Owned IP Rights (case of a domain name or social media account, the “Company Registered IP”) and (ii) material Software included in the Company-Owned IP Rightsapplicable domain name registrar or host).
(b) The Company Entitiesand its Subsidiaries own, license or otherwise have the right to use all Intellectual Property used in the operation of their businesses as currently conducted, in the case may bemanner in which such Intellectual Property is currently used (provided, exclusively own all righthowever, title and interest in and to that the Company-Owned IP Rights, free and clear of all Liens except for Permitted Liens. Except as would foregoing shall not be material deemed to the Company Entities taken be a representation as a whole, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP.
(c) None of the Companynon-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company Entities. There is no Action pending or, to the Seller’s Knowledge, threatened against any Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the Seller’s Knowledge, there has been and there is no written allegation made by any Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any Intellectual Property, for which the representations in Section 3.16(c) shall control), the Intellectual Property owned by the Company and its Subsidiaries is owned free and clear of all Liens (other than Permitted Liens), and the material Owned Intellectual Property is subsisting, and to the Knowledge of the Company-Owned IP Rights by any Person, the issued and granted items therein are valid and enforceable.
(ec) Except as as, individually or in the aggregate, has not had and would not reasonably be expected to be material have a Company Material Adverse Effect, (i) to the Company Entities taken as a wholeKnowledge of the Company, the operation conduct of any the business of the Company Entity and its Subsidiaries as currently conducted as of the date hereof, and the operation of any Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of violate any other Person. No ’s Intellectual Property rights, (ii) since the Lookback Date, neither the Company Entity nor any of its Subsidiaries has received any written notice since the Look-back Date alleging that the operation or written allegation of any Company Entity infringesinfringement, misappropriates, misappropriation or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request violation from any Person that any Company Entity license any Intellectual Property Rights). There is no Action pending, or, third party with respect to the SellerCompany’s Knowledge, threatened against or any Company Entity alleging that the operation of the business of any Company Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third party.
(f) Except as set forth on Section 4.11(f) of the Seller Disclosure Letter and as would not reasonably be expected to be material to the Company Entities taken as a whole, the Company Entities have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development its Subsidiaries’ use of any Intellectual Property Right for and (iii) to the Knowledge of the Company, no Person is infringing, misappropriating or on behalf ofotherwise violating any Owned Intellectual Property, and no such claims have been asserted or under the direction or supervision of, threatened in writing against any Person by the Company Entities (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all or any of its Subsidiaries since the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities do not otherwise own by operation of law. No Contributor owns or, to the Seller’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP Rights. Except as would not reasonably be expected to be material to the Company Entities taken as a whole, each Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company Entity, from all current and former ContributorsLookback Date.
(gd) The Company Entities and its Subsidiaries have taken made commercially reasonable steps efforts to (i) maintain and protect and maintain the confidentiality of any material Trade Secrets included in the Company IP Rights, Owned Intellectual Property and (ii) protect the security and integrity of the IT Assets owned by or purported to the Seller’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Company Entities have entered into reasonable confidentiality agreements with each Person having access to be owned by the Company Entities’ Trade Secretsor any of its Subsidiaries (the “Owned IT Assets”). To the Seller’s Knowledge, no such Person is in violation Knowledge of any such agreement.
(h) The Company Entities exclusively own all right, title and interest in and to, or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company Entities’ business (subject to Section 4.11(b) with respect to the Company-Owned IP Rights) and all such Company IP Rights shall be owned , since the Lookback Date, there has been no material security breach of or available for use by the Company Entities immediately after the Closing on terms and conditions identical to those under which the Company Entities owned or used such Company IP Rights immediately prior to the Closing. The Company Entities may exercise, transfer, or license the Company IP Rights without material restriction or material payment unauthorized access to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict or impair the right of the Company Entities to transfer, alienate, enforce, own, use or license, or affect the validity or enforceability of, any Company-Owned IP RightsIT Assets.
(i) The Company Entities (i) have taken commercially reasonable steps Since the Lookback Date, to protect the confidentiality, integrity and security Knowledge of the Company, there has been no material unauthorized access to, or unauthorized use or other processing of, any Personal Information that is collected or otherwise processed by the Company Systems and have implemented and comply with commercially reasonable written data and information security, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, or any of its Subsidiaries and (ii) have taken commercially reasonable steps to assess and test such plans and procedures, and such assessments and tests have not identified any material issues that remain unremedied. Since the Look-back Date, the Company Systems have not been affected by any and its Subsidiaries are in material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities as presently conducted.
(j) The Company Entities (and, to the Seller’s Knowledge, any third Person using Personal Data on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal Data), the Company Entities’ Contracts, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statementsgoverning the collection, policies, procedures or Contracts regarding the Company Entities’ information practices or the use, access, collection, retentionstorage, processing, disclosuretransmission, modification or destruction transfer, disclosure and protection of any Personal Data, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity relating to any of the foregoing. The Company Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company Entities against any unauthorized use, access or disclosureInformation.
Appears in 1 contract
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a4.9(a) of the Seller Company Disclosure Letter sets forth a true and complete list of all (i) PatentsOwned Registered IP, registered Marksindicating for each such item, registered Copyrights as applicable, the application or registration number, date and domain name registrationsjurisdiction of filing or issuance, including any applications for any and the identity of the foregoingcurrent applicant(s) or registered owner(s), included in the Company-Owned IP Rights (the “Company Registered IP”) and (ii) all material Software included unregistered trademarks owned or purported to be owned by a Purchased Company and used in connection with any Company Product. All Owned Registered IP is subsisting and valid and (other than pending registration applications) enforceable. All filings, payments, and other actions required to be made or taken by any Purchased Company to or with any Governmental Authority to obtain, perfect, or maintain in full force and effect each item of Owned Registered IP have been made or taken by the applicable deadline and otherwise in accordance with all applicable Laws. No application for, or registration with respect to, any material Owned Registered IP has been abandoned, allowed to lapse, or rejected. No interference, opposition, reissue, reexamination, or other Action of any nature is, or since January 1, 2018, has been, pending or threatened in writing (or, to the Knowledge of the Company-, threatened orally) in which the scope, validity, or enforceability of any Owned Registered IP Rightsis being or has been contested or challenged.
(b) The A Purchased Company Entities, as is the case may be, exclusively own all right, title sole and interest in and to exclusive owner of the Company-Owned IP RightsIP, free and clear of all Liens except for Permitted Liens. Except as would not be material to the Company Entities taken as a whole, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP.
(c) None of the Company-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company Entities. There is no Action pending or, to the Seller’s Knowledge, threatened against any Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights Encumbrances (other than proceedings Permitted Encumbrances), and the Owned IP has not been adjudged invalid or unenforceable. The Purchased Companies own, or have a valid right to use, all Intellectual Property used in or necessary for the conduct of the businesses of the Purchased Companies as currently conducted or as currently proposed (as set forth in the Ordinary Course current written product roadmap or project plans of the Purchased Companies)) to be conducted by the Purchased Companies (collectively, the “Business before any Governmental Authority related IP”); provided, however, that the foregoing shall not be deemed to be a representation or warranty as to the application for any item of Company Registered IP) and the Company Entities have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the Seller’s Knowledge, there has been and there is no written allegation made by any Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights by the Intellectual Property of any Person. No Person who has licensed Intellectual Property to any Purchased Company has ownership rights or license rights to derivative works or improvements (excluding feedback with respect to the licensor’s products or services provided by a Purchased Company in the course of using such products or services or receiving services) made by or on behalf of any Purchased Company relating to such Intellectual Property. No Person has ownership rights in derivative works of or improvements in Owned IP.
(ec) Except as would not reasonably be expected to be material to the Since January 1, 2018, no Purchased Company Entities taken as a whole, the operation of any Company Entity as currently conducted as of the date hereof, and the operation of any Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No Company Entity has received any written notice since the Look-back Date alleging that the operation of any Company Entity infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Company Entity license any Intellectual Property Rights). There is no Action pending, or, to the Seller’s KnowledgeKnowledge of the Company, threatened against other notice (i) contesting the validity, enforceability, or ownership of any Company Entity Owned IP, or (ii) alleging that the operation of the business of any Company Entity has infringedthe Purchased Companies infringes upon, misappropriated misappropriates, or otherwise violated violates any third-party Intellectual Property (including any such notice inviting a Purchased Company to take a license under any Intellectual Property Right and that a reasonable Person under the circumstances would interpret to be a claim), and, in the case of the preceding clauses (i) and (ii), to the Knowledge of the Company, no such claims have been threatened. The operation of the business of the Purchased Companies has not infringed upon, misappropriated, or otherwise violated, and is not infringing upon, misappropriating, or otherwise violating, any third-party Intellectual Property rights. To the Knowledge of the Company, no third party is infringing misappropriating, or otherwise violating the Owned IP and, since January 1, 2018, no Purchased Company or any Representative of any third partyPurchased Company has sent or otherwise delivered any letter or other written communication alleging the foregoing.
(fd) Except as set forth on Neither the execution, delivery, or performance of this Agreement or the Ancillary Agreements, nor the consummation of any of the Transactions, will, with or without notice or the lapse of time, result in, or give any other Person the right or option to cause or declare any of the following pursuant to the terms of any Contract to which any Purchased Company is a party or by which any Assets of a Purchased Company are otherwise bound: (i) a loss of, or Encumbrance on, any Owned IP; (ii) a breach of, termination of, or acceleration or modification of any right or obligation under any Contract listed or required to be listed in Section 4.11(f4.10(a)(v) of the Seller Company Disclosure Letter and as would not reasonably be expected to be material to Letter; (iii) the Company Entities taken as a wholerelease, the Company Entities have secured from all foundersdisclosure, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development delivery of any Intellectual Property Right for Owned IP by or on behalf ofto any escrow agent or other Person; or (iv) the grant, assignment, or under the direction transfer to any other Person of any license or supervision ofother right or interest under, the Company Entities to, or in any Intellectual Property, including any such grant, assignment, or transfer by Purchaser or its Affiliates (eachexcluding any such grant, assignment, or transfer of any license or other right or interest that arises from any Contract to which Purchaser or any of its Affiliates is a “Contributor”), unencumbered and unrestricted exclusive ownership of, all party but to which none of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities do not otherwise own by operation of law. No Contributor owns or, to the Seller’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP Rights. Except as would not reasonably be expected to be material to the Company Entities taken as Purchased Companies is a whole, each Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company Entity, from all current and former Contributorsparty).
(ge) The Company Entities Purchased Companies have taken commercially reasonable steps to protect and maintain any Trade Secrets included in preserve the Company IP Rights, and to the Seller’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures confidentiality of any trade secret and other material confidential Proprietary Information (including the source code for the Proprietary Software) that either (i) is Owned IP or (ii) was disclosed by a third party to any Purchased Company and with respect to which any Purchased Company has undertaken a duty of confidentiality. Each Person who is or was an employee, officer, manager, director, or contractor of any Purchased Company and who is or was engaged by a Purchased Company or its agent to design, create, or otherwise develop any Intellectual Property has signed an enforceable agreement containing an irrevocable assignment to a Purchased Company of all such Trade SecretsIntellectual Property. The No current or former Service Provider of a Purchased Company Entities have entered into reasonable confidentiality agreements with each Person having access holds any right, title or interest, directly or indirectly, in whole or in part, in or to the Company Entities’ Trade Secretsany Owned IP. To the Seller’s KnowledgeKnowledge of the Company, no such Person is in violation employee of any Purchased Company is (i) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties for any Purchased Company or (ii) in breach of any Contract with any former employer or other Person, in each case, concerning Intellectual Property or confidentiality.
(f) None of the Company Products (i) contains any bug, defect, or error that materially and adversely affects the use, functionality, or performance of such agreementCompany Product or any product or system containing or used in conjunction with such Company Product, or (ii) fails to comply in any material respect with any applicable warranty or other contractual commitment made by any Purchased Company relating to the use, functionality, or performance of such Company Product or any product or system containing or used in conjunction with such Company Product.
(g) No Company Product contains any Malicious Code which may (i) disrupt, disable, erase, or harm in any way such Company Product’s operation, or cause such Company Product to damage or corrupt any data, hardware, storage media, programs, equipment or communications, (ii) compromise the privacy or data security of a user or damage or destroy any data or file without the user’s consent, or (iii) permit any Person to access such Company Product or the Purchased Companies’ IT Systems without authorization. Each Purchased Company implements industry standard measures designed to prevent the introduction of any Malicious Code into Company Products.
(h) The Company Entities exclusively own all rightNo source code for any Proprietary Software has been delivered, title and interest in and tolicensed, or otherwise possess validmade available to any escrow agent or other Person who was not an employee or contractor of a Purchased Company who needed access to such source code to perform services to or on behalf of a Purchased Company. No Purchased Company has any duty or obligation (whether present, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company Entities’ business (subject to Section 4.11(b) with respect to the Company-Owned IP Rights) and all such Company IP Rights shall be owned or available for use by the Company Entities immediately after the Closing on terms and conditions identical to those under which the Company Entities owned or used such Company IP Rights immediately prior to the Closing. The Company Entities may exercise, transfercontingent, or license the Company IP Rights without material restriction or material payment otherwise) to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict or impair the right of the Company Entities to transferdeliver, alienate, enforce, own, use or license, or affect make available the validity source code for any Proprietary Software to any escrow agent or enforceability ofother Person. No event has occurred, and no circumstance or condition exists, that, with or without notice or lapse of time, will, or would reasonably be expected to, result in the delivery, license, or disclosure of any Company-Owned IP Rightssource code for any Company Product to any other Person.
(i) The Company Entities No Proprietary Software is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any Open Source Software license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that, based on the conduct of the businesses of the Purchased Companies as previously or currently conducted or currently proposed to be conducted, would: (i) require or condition the use or distribution of such Proprietary Software or portion thereof on (A) the disclosure, licensing, or distribution of any source code for any Proprietary Software or any portion thereof, (B) the granting to licensees of the right to reverse engineer or make derivative works or other modifications to such Proprietary Software or portions thereof, (C) licensing or otherwise distributing or making available any Proprietary Software or any portion thereof for a nominal or otherwise limited fee or charge, or (D) granting any Intellectual Property rights to any licensee or other third party; or (ii) otherwise impose any limitation, restriction, or condition on the right or ability of any Purchased Company to use, license, distribute, or charge for any Proprietary Software or any Intellectual Property rights therein (provided that an obligation to provide any notices, disclaimers, or attribution under any Open Source Software license shall not be deemed to be a limitation, restriction, or condition for purposes of clause (ii)).
(j) No funding, facilities, or personnel of any Governmental Authority were used to develop or create, in whole or in part, any Owned IP. No Purchased Company is a party to any Contract with any Governmental Authority that grants to such Governmental Authority any right or license with respect to any Owned IP.
(k) No Purchased Company is, nor ever has been, a member or promoter of, or a contributor to, any industry standards body or similar organization that could require or obligate any Purchased Company to grant or offer to any other Person any license or right to any Owned IP or to refrain from enforcing any Owned IP.
(l) The Purchased Companies have taken implemented and maintained an information security plan (the “Security Plan”), which implements commercially reasonable, industry standard organizational, technical, and physical safeguards to (i) protect the integrity, availability, and security of the IT Systems, and the information stored therein (including, but not limited to, Personal Data, Proprietary Information, and other confidential data in the possession or under the control of the Purchased Companies) against accidental, unlawful or unauthorized use, disclosure, access, or other Processing (each a “Security Incident”) and (ii) identify and address internal and external risks to the Processing, privacy, and security of Personal Data in any Purchased Company’s possession or control. Each Purchased Company has, and at all times since January 1, 2018 has had, in place contractual arrangements with (x) all Data Partners and (y) each customer or other entity for or on behalf of which such Purchased Company Processes Personal Data, such contractual arrangements requiring protection of Personal Data in a manner consistent with the respective Privacy Obligations of such Purchased Company. Where, to the extent required by the Privacy Obligations, the Purchased Companies act as a processor or service provider for Personal Data under Privacy Laws, the Purchased Companies have contractual commitments that the relevant controller and/or business has provided notice of the Personal Data being used and shared with the Purchased Companies consistent with Privacy Laws and sought any necessary consents. The terms “controller”, “processor”, “business” and “service provider” have the meanings assigned to such terms in Privacy Laws.
(m) No Purchased Company and, to the Knowledge of the Company, none of the Purchased Companies’ respective Data Partners, have, since January 1, 2018, experienced any actual or suspected Security Incidents. No Purchased Company has, in relation to any Security Incident and/or a Privacy Obligation: (i) been required to notify any Person and/or Governmental Authorities, (ii) been the subject of any inquiry, enforcement action or, to the Knowledge of the Company, investigation of any Governmental Authority, or (iii) received any notice, request, claim, complaint, correspondence, or other communication from any Governmental Authority or other Person.
(n) The IT Systems (i) are sufficient for the current operations of the Purchased Companies, (ii) have not, at any time since January 1, 2018, malfunctioned or failed in any material respect, and (iii) do not contain any Malicious Code. The Purchased Companies have implemented and maintain commercially reasonable steps measures designed to protect the confidentiality, integrity and security of the IT Systems under their control, as well as commercially reasonable data backup and continuity, system redundancy, and disaster avoidance and recovery procedures.
(o) Each Purchased Company Systems is, and since January 1, 2018, has been, in material compliance with its Privacy Obligations. No Action is pending or, since January 1, 2018, has been made or, to the Knowledge of the Company, threatened against any Purchased Company alleging that any use, disclosure, or Processing of Personal Data by such Purchased Company is in violation of a Privacy Obligation. Each Purchased Company has at all times presented a Privacy Policy to Persons prior to the collection of any Personal Data as required by Privacy Obligations. The Purchased Companies’ Privacy Policies are and have implemented and comply with commercially reasonable written data and information securityat all times been accurate, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Lawsconsistent, and complete, and not misleading or deceptive (including by omission) regarding each Purchased Company’s then-current Processing activities.
(p) No Purchased Company has transferred or permitted the transfer of Personal Data originating in the European Economic Area or the United Kingdom outside of the European Economic Area or the United Kingdom, except where such transfers have complied with Privacy Obligations.
(q) The execution, delivery, and performance of this Agreement and the consummation of the Transactions (including the Share Purchase) will not: (i) conflict with or result in a violation or breach of any Privacy Obligation in any material respect; (ii) have taken commercially reasonable steps require the consent of or provision of notice to assess any Person concerning such Person’s Personal Data or to any Governmental Authority; (iii) give rise to any right of termination or other right to impair or limit the Purchaser’s or its Subsidiaries’ rights to own and test such plans and procedures, and such assessments and tests have not identified Process any material issues that remain unremedied. Since the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software Personal Data used in or necessary for the operation of the businesses Purchased Companies’ business; or (iv) otherwise prohibit the transfer of Personal Data to Purchaser. To the extent that any Personal Data transferred as part of the Transactions satisfies the definition of “personal information” as defined by the California Consumer Privacy Act (“CCPA”), for the avoidance of doubt, all such Personal Data is an asset that will be transferred as part of the Transactions, as contemplated by Section 1798.140(t)(2)(D) of the CCPA.
(r) The Purchased Companies maintain insurance coverage that is commercially reasonable in relation to any Security Incident.
(s) The representation and warranty set forth in Section 4.9(s) of the Company Entities as presently conductedDisclosure Letter is incorporated herein by reference.
(j) The Company Entities (and, to the Seller’s Knowledge, any third Person using Personal Data on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal Data), the Company Entities’ Contracts, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company Entities’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal Data, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity relating to any of the foregoing. The Company Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company Entities against any unauthorized use, access or disclosure.
Appears in 1 contract
Samples: Share Purchase Agreement (SMART Global Holdings, Inc.)
Intellectual Property; Information Technology; Privacy. (aa. Schedule 3.11(a) Section 4.11(a) of the Seller Disclosure Letter sets forth a list as of the date hereof of all (i) Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, registrations included in the Company-Owned IP Rights (the “Company Registered IP”) as well as any Intellectual Property Rights that have a security interest registered against them. Schedule 3.11(a) includes the status of all Company Registered IP, including any due dates and (ii) material Software included deadlines for fees, payments or steps that must be taken with respect to the Company Registered IP in the Company-Owned IP Rightsnext twelve (12) months.
(b) The b. Except as disclosed in Schedule 3.11(b), the Company Entitiesand its Subsidiaries, as the case may be, exclusively own all right, title and interest in and to the Company-Owned IP Rights, Rights free and clear of all Liens except for (other than Permitted Liens). Except as would not be material to the Company Entities taken as a whole, (i) the The Company Registered IP is subsistingsubsisting and, validto the knowledge of the Company, not invalid or unenforceable. The Company and enforceable, and (ii) the Company Entities its Subsidiaries are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP, except in each case as the Company or its Subsidiaries has elected in its reasonable business judgment to abandon or permit to lapse a registration or application.
(c) c. None of the Company-Owned Company Registered IP Rights are is subject to any Government Order adversely affecting the use thereof or rights thereto by the Company Entitiesor its Subsidiaries. There is no opposition or cancellation Action pending or, to against the Seller’s Knowledge, threatened against any Company Entity or its Subsidiaries concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned Company Registered IP Rights (other than ordinary course proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company-Owned IP Rights).
d. The Company Registered IP) and its Subsidiaries own, license, sublicense, or otherwise possess legally enforceable and sufficient rights to all Intellectual Property Rights and other intangible assets necessary to conduct the business of the Company Entities have not received and its Subsidiaries immediately following the Closing in all material respects in substantially the same manner as such businesses are conducted as of the date hereof. The Company and its Subsidiaries may exercise, transfer, or license the Company IP Rights and such other intangible assets owned, or purported to be owned, by, or licensed to, the Company or any written notices regarding of its Subsidiaries (other than any “shrink wrap”, “commercially available software package,” “click through” license or off-the-shelf Software licenses commercially available on standard terms), without restriction or payment to any Person. Neither this Agreement nor any of the foregoing.
(d) Since Transactions will restrict or impair the Look-back Dateright of the Company or its Subsidiaries to transfer, to the Seller’s Knowledgealienate, there has been and there is no written allegation made by enforce or license any Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights or other such intangible asset owned, or purported to be owned, by the Company or any Personof its Subsidiaries as such right exists as of the date hereof.
e. The consummation of the Transactions will not cause (ei) Except as would not reasonably be expected the forfeiture or termination of, or give rise to be material to the Company Entities taken as a whole, the operation right of forfeiture or termination of any Company Entity IP Rights, (ii) the grant of any rights or licenses to any Company-Owned IP Right or Intellectual Property Rights owned by Parent, or (iii) additional payment obligations by the Company or its Subsidiaries in order to use or exploit any Company IP Rights to the same extent as Company and its Subsidiaries were permitted before the date of this Agreement.
f. To the knowledge of the Company, since the date that is six (6) years prior to the date of this Agreement, there has been, and as of the date hereof, there is, no infringement or misappropriation, or other violation by a third party, or written allegation made by the Company or any of its Subsidiaries, of any Company-Owned IP Rights.
g. The operation of the business of the Company or any of its Subsidiaries as currently conducted as of the date hereof, and as will be conducted immediately following the Closing, and the operation of the business of the Company or any Company Entity of its Subsidiaries as conducted since the Look-back Datedate that is six (6) years prior to the date of this Agreement, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No Neither the Company Entity nor any of its Subsidiaries has received any written notice since the Look-back Date alleging date that the operation of any Company Entity infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person is six (including any demand or request from any Person that any Company Entity license any Intellectual Property Rights). There is no Action pending, or, 6) years prior to the Seller’s Knowledge, threatened against any Company Entity date of this Agreement alleging that the operation of the business of the Company or any Company Entity has infringedof its Subsidiaries infringes, misappropriated misappropriates, violates or otherwise violated any conflicts with the Intellectual Property Right Rights of any third partyother Person.
(f) Except as set forth on Section 4.11(f) of the Seller Disclosure Letter h. The Company and as would not reasonably be expected to be material to the Company Entities taken as a whole, the Company Entities its Subsidiaries have secured from all founders, consultants, advisors, employees, freelancers, writers, employees and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right Rights for or on behalf of, or under the direction or supervision of, the Company Entities (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all of the Contributors’ Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities do not otherwise own by operation of lawcan be assigned. No Contributor owns or, to the Seller’s Knowledgeknowledge of the Company, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP Rights. Except as would not reasonably be expected to be material to Rights developed by the Contributor for the Company Entities taken as a wholeor its Subsidiaries. Without limiting the foregoing, each the Company Entity has obtained obtained, and maintained copies of, written and enforceable Contracts with respect to proprietary information and invention disclosure and present assignments of such Intellectual Property Rights to assignments, and waivers of such Company Entityrights that cannot be assigned, from all current and former Contributors.
(g) i. The Company Entities and its Subsidiaries have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP RightsRights (except for any Company IP Rights whose value would not reasonably be expected to be impaired in any material respect by disclosure), and to the Seller’s Knowledgeknowledge of the Company, there have been no misappropriation or material unauthorized uses or disclosures of any such Trade Secrets.
j. Neither the Company nor its Subsidiaries has combined Open Source Software with any Software, the copyright in which is owned by the Company or its Subsidiaries (the “Business Software”), and distributed such combined Software such that such Business Software would become subject to the terms of the license under which such Open Source Software is licensed that require the disclosure or distribution to any Person or the public of any portion of the source code for such Business Software. The Company Entities have entered into reasonable confidentiality agreements and its Subsidiaries are in material compliance with each the terms and conditions of all relevant licenses for Open Source Software used in the business of the Company or any of its Subsidiaries, including notice and attribution obligations. Neither the Company nor its Subsidiaries has delivered, licensed or made available, or is under a duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any Business Software to any escrow agent or other Person who is not an employee or consultant and acting on behalf of the Company or its Subsidiaries.
k. Except as disclosed in Schedule 3.11(k), there has been no disclosure of any Business Software other than through licensing of object code versions in the ordinary course of business. Each copy so distributed is the subject of an existing and enforceable license agreement. Each Person having access received source code or data relating to any Software distributed by the Company is bound by an appropriate confidentiality and non-disclosure agreement with respect to such Software and, to the Company Entities’ Trade Secrets. To the SellerCompany’s Knowledgeknowledge, there are no such Person is in violation breaches of any such agreement.
(h) The Company Entities exclusively own all right, title and interest in and to, agreements or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company Entities’ business (subject to Section 4.11(b) any threatened disputes or disagreements with respect to the Company-Owned IP Rightsthem.
l. Schedule 3.11(l) sets forth a list of Software owned by, and all such Company IP Rights shall be owned material Software licensed to or available for use by used by, the Company Entities immediately after the Closing on terms and conditions identical to those under or its Subsidiaries for which the Company Entities owned or used such Company IP Rights immediately prior to its Subsidiaries have in their possession copies of the Closingsource code. The Company Entities may exerciseExcept for Open Source Software, transfer, or license the Company IP Rights without material restriction or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict or impair the right of the Company Entities to transferits Subsidiaries have treated such Software as confidential and proprietary business information, alienate, enforce, own, use or license, or affect the validity or enforceability of, any Company-Owned IP Rights.
(i) The Company Entities (i) and have taken commercially all reasonable steps to protect the confidentialitysame as their Trade Secrets. Such Software does not contain any undisclosed program routine, integrity device or other feature, including viruses, worms, bugs, time locks, Trojan horses or back doors, in each case that is designed to delete, disable, deactivate, interfere with or otherwise harm such Software, or any virus or other intentionally created, undocumented contaminant that may, or may be used to, access, modify, delete, damage or disable any hardware, system or data, provided that, in respect of any Software not owned by the Company, the foregoing representation and security warranty is made to the knowledge of the Company Systems Company.
m. The information technology systems function, operate, process and have implemented compute in accordance with all applicable laws, industry standards and comply with commercially reasonable written data and information securitytrade practices, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and (ii) have taken commercially reasonable steps to assess and test such plans and procedures, and such assessments and tests have not identified any material issues that remain unremedied. Since the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities as presently conducted.
(j) The Company Entities (and, to the Seller’s Knowledge, any third Person using Personal Data on their behalf) comply information technology systems operate and perform in all material respects in accordance with their documentation and functional specifications. The information technology systems have not materially malfunctioned or failed within the past three (3) years.
n. Except as disclosed in Schedule 3.11(n), since the date that is three (3) years prior to the date of this Agreement, (i) there have been no material breaches of security safeguards (including but not limited to any loss of, unauthorized access to or unauthorized disclosure of data, encryption event or the unauthorized deployment of viruses or malware) in the information technology systems used in the business of the Company or any of its internal policies Subsidiaries, (ii) there have been no material disruptions in any such information technology systems that adversely affected the operations of the business of the Company or any of its Subsidiaries, and privacy statements(iii) there have been no threatened or actual claims against the Company or any of its Subsidiaries resulting from any such breach of security safeguards or disruptions. The Company and its Subsidiaries have a written information security program in place, policies consistent with current industry standards and procedures related practices, in all material respects, to privacy and security of Company Systems ensure that (and the data therein, including i) Personal Data), and all information technology systems are adequately safeguarded and (ii) all information technology systems will be continuously available and functioning normally in the event of any malfunction of, any suspension or cessation in the operation of, or other form of disaster affecting, the Company Entities’ Contractsinformation technology systems. Such program includes, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statementsat minimum, policies, procedures or Contracts regarding and systems addressing information security, cybersecurity risk management, vendor management, employee training, business continuity and disaster recovery, data and system backup and data breach response, including the recording and reporting of data breaches.
o. The Company and its Subsidiaries have at all times complied, and presently comply, with applicable Privacy Requirements, in all material respects. Neither the Company Entities’ information practices nor its Subsidiaries have, since the date that is three (3) years prior to the date of this Agreement, (i) received any notice (written or the use, access, collection, retention, processing, disclosure, modification or destruction of otherwise) from any Personal Data, or applicable Governmental Entity alleging a violation of any individual’s privacyPrivacy Requirements by the Company or its Subsidiaries, publicity nor has the Company or confidentiality rights, including from the U.S. Federal Trade Commission, its Subsidiaries been threatened (in writing or otherwise) to be charged with any similar foreign bodies, or such violation by any other Governmental Authority and there is no Action pending, or, Entity; (ii) to the Seller’s Knowledge, threatened against any Company Entity relating to any knowledge of the foregoingCompany, been subject of an investigation, audit or other inquiry from a Governmental Entity regarding non-compliance with Privacy Requirements, (iii) received any notice (written or otherwise) from any third-party alleging non-compliance with Privacy Requirements or the Company or its Subsidiaries privacy policies. All information furnished to customers, prospective customers, insurers or other third parties regarding the Company and its Subsidiaries compliance and compliance programs related to the Privacy Requirements have been complete and accurate in all material respects.
p. The Company Entities and its Subsidiaries have (x) taken reasonable appropriate actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company Entities in their possession or under their control against any unauthorized use, access or disclosure and (y) entered into written agreements with all third-party service providers, outsourcers, processors or other third parties who process, store or otherwise handle Personal Data for or on behalf of the business that obligate such persons to comply, in all material respects, with all applicable Privacy Requirements and to take steps to protect and secure Personal Data from loss, theft, misuse or unauthorized use, access, modification or disclosure. To the knowledge of the Company, except as disclosed in Schedule 3.11(p), since the date that is three (3) years prior to the date of this Agreement, there has been no unauthorized use, access, disclosure, or other security incident of or involving Personal Data collected, used in connection with or under the control of the business of the Company or any of its Subsidiaries. Since the date that is three (3) years prior to the date of this Agreement, the Company and its Subsidiaries have had, and presently have, in place a privacy policy or policies governing the collection, use, disclosure and protection of Personal Data by the Company and its Subsidiaries, and have collected, used, disclosed and protected Personal Data in accordance with such policy or policies, in all material respects.
q. In carrying on the business the Company and its Subsidiaries have, in all material respects, complied at all times with the applicable requirements under CASL.
r. The Computer Systems adequately meet the data processing and other computing needs of the business and operations of the Company and its Subsidiaries as presently conducted. The Computer Systems function, operate, process and compute in accordance with all applicable laws, and consistent with industry standards and practices, in all material respects.
s. The Company and its Subsidiaries have measures in place, consistent with current industry standards and practices, to ensure that the Computer Systems contain appropriate virus protection and security measures to safeguard against the unauthorized use, copying, disclosure, modification, theft or destruction of and access to, system programs and data files comprised by the Computer Systems. The Company and its Subsidiaries have and maintain an accurate and confidential listing of all applicable accounts, passwords, encryption algorithms and programs or other access keys required to ensure secure and proper access by the Company, its Subsidiaries and their respective employees to the system programs and data files comprised by the Computer Systems. The data processing and data storage facilities used by the Company and its Subsidiaries in connection with the operation of the business of the Company or any of its Subsidiaries are adequately and properly protected consistent with current industry standards and practices.
t. The Company and its Subsidiaries have and maintain back-up systems and disaster recovery and business continuity plans, consistent with current industry standards, to adequately and properly ensure the continuing availability of the functionality provided by the Computer Systems in the event of the malfunction of, or other form of disaster affecting, the Computer Systems.
Appears in 1 contract
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a) of the Seller Disclosure Letter sets forth a list of all (i) Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, included in the Company-Owned IP Rights (the “Company Registered IP”) and (ii) material Software included in the Company-Owned IP Rights.
(b) The Company Entities, as the case may be, exclusively own all right, title and interest in and to the Company-Owned IP Rights, free and clear of all Liens except for Permitted Liens. Except as would not be material to the Company Entities taken as a whole, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP.
(c) None of the Company-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company Entities. There is no Action pending or, to the Seller’s Knowledge, threatened against any Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the Seller’s Knowledge, there has been and there is no written allegation made by any Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights by any Person.
(e) Except as would not reasonably be expected to be material to the Company Entities taken as have a wholeParent Material Adverse Effect, the operation (i) since January 1, 2017, none of any Company Entity as currently conducted as of the date hereof, and the operation of any Company Entity as conducted since the Look-back Date, does not infringe, misappropriate Parent or otherwise violate, and its Subsidiaries has not infringed, misappropriated misappropriated, or otherwise violated, the Intellectual Property Rights of any other Person. No Company Entity has received any written notice since the Look-back Date alleging that the operation of any Company Entity infringesor is currently infringing, misappropriatesmisappropriating, or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Company Entity license any Intellectual Property Rights). There is no Action pendingviolating, or, to the Seller’s Knowledge, threatened against any Company Entity alleging that the operation of the business of any Company Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third partyother Person, and (ii) no infringement, misappropriation, or similar claim or Proceeding is pending or threatened in writing against any of Parent or its Subsidiaries or against any Person who may be entitled to be indemnified or reimbursed by Parent or its Subsidiaries with respect to such claim or Proceeding.
(fb) Except as set forth on Section 4.11(f) of the Seller Disclosure Letter and as would not reasonably be expected to be material have a Parent Material Adverse Effect, the information technology systems used by Parent and its Subsidiaries (“Parent IT Systems”) are designed, implemented, operated and maintained in accordance with customary industry standards and practices for entities operating businesses similar to the Company Entities business of Parent and its Subsidiaries, including with the respect to redundancy, reliability, scalability and security. Without limiting the foregoing and except as would not reasonably be expected to have a Parent Material Adverse Effect, (i) each of Parent and its Subsidiaries has taken as a whole, commercially reasonable steps and implemented commercially reasonable procedures designed to ensure that the Company Entities have secured Parent IT Systems are free from all founders, consultants, advisors, employees, freelancers, writersMalicious Code, and independent contractors who independently or jointly contributed (ii) each of Parent and its Subsidiaries has in effect industry standard disaster recovery plans, procedures and facilities for its business and has taken commercially reasonable steps to or participated in safeguard the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under security and the direction or supervision of, the Company Entities (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all integrity of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities do not otherwise own by operation of law. No Contributor owns or, to the Seller’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP RightsParent IT Systems. Except as would not reasonably be expected to be material to the Company Entities taken as have a whole, each Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company Entity, from all current and former Contributors.
(g) The Company Entities have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP Rights, and to the Seller’s KnowledgeParent Material Adverse Effect, there have been no misappropriation unauthorized intrusions or unauthorized uses or disclosures breaches of any such Trade Secrets. The Company Entities have entered into reasonable confidentiality agreements with each Person having access to the Company Entities’ Trade Secrets. To the Seller’s Knowledge, no such Person is in violation of any such agreement.
(h) The Company Entities exclusively own all right, title and interest in and to, or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company Entities’ business (subject to Section 4.11(b) security with respect to the Company-Owned IP Rights) and all such Company IP Rights shall be owned or available for use by the Company Entities immediately after the Closing on terms and conditions identical to those under which the Company Entities owned or used such Company IP Rights immediately prior to the Closing. The Company Entities may exercise, transfer, or license the Company IP Rights without material restriction or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict or impair the right of the Company Entities to transfer, alienate, enforce, own, use or license, or affect the validity or enforceability of, any Company-Owned IP RightsParent IT Systems.
(ic) The Company Entities Except as would reasonably be expected to have a Parent Material Adverse Effect, each of Parent’s and its Subsidiaries’ data, privacy, and security practices comply, and at all times since January 1, 2017, have complied, with: (i) have taken commercially reasonable steps all privacy policies and any other terms applicable to protect the confidentialitycollection, integrity retention, use, disclosure and security distribution of Personal Information from individuals by Parent, its Subsidiaries, or its or their agents that are or were in effect since January 1, 2017, and all internal policies, notices, and statements since January 1, 2017, concerning the privacy, security, or Processing of Personal Information by Parent and its Subsidiaries, (ii) all obligations or restrictions concerning the privacy, security, or Processing of Personal Information under any Contract to which Parent or its Subsidiaries is a party or otherwise bound as of the Company Systems date hereof and (iii) the Privacy Laws.
(d) Except as would not reasonably be expected to have implemented and comply with commercially reasonable written data and information securitya Parent Material Adverse Effect, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws(i) no Personal Information in the possession or control of Parent or its Subsidiaries, or held or Processed by any vendor, processor, or other third party for or on behalf of Parent or its Subsidiaries, has been subject to any Security Incident, and (ii) have taken commercially reasonable steps to assess Parent and test such plans and procedures, and such assessments and tests its Subsidiaries have not identified any material issues that remain unremedied. Since notified and, to the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back DateKnowledge of Parent, there have been no security breaches facts or circumstances that materially affected the operation of the Company Systems would require Parent or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities as presently conducted.
(j) The Company Entities (and, its Subsidiaries to the Seller’s Knowledgenotify, any third Governmental Authority or other Person using Personal Data on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal Data), the Company Entities’ Contracts, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company Entities’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal Data, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity relating to any of the foregoing. The Company Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company Entities against any unauthorized use, access or disclosureSecurity Incident.
Appears in 1 contract
Samples: Merger Agreement (Intuit Inc)
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a3.12(a) of the Seller Company Disclosure Letter Schedule sets forth as of the date hereof a true, complete and correct list of all (i) United States- and foreign-issued Patents, pending Patent applications, registered Marks, pending applications for registration of Marks, registered Copyrights and registered Internet domain name registrationsnames owned by the Company or its subsidiaries (the foregoing being, including any applications for any of collectively with material unregistered Intellectual Property and common law rights owned by the foregoingCompany or its subsidiaries, included in the Company-Owned IP Rights (the “Company Registered IPIntellectual Property”) ). No registrations or applications for Company Intellectual Property have expired or been canceled or abandoned except in accordance with the expiration of the term of such rights or where the Company has made a good-faith business judgment to permit such registrations or applications to expire, be canceled or become abandoned. Except as would not reasonably be expected to be material to the Company and (ii) material Software included in the Company-Owned IP Rightsits subsidiaries, taken together, each item of Company Intellectual Property is valid, subsisting and enforceable.
(b) The Either the Company Entities, as or any of its subsidiaries is the case may be, exclusively own sole owner and possesses all right, title and interest in and to, or otherwise has the valid licensed right to use, each item of material Intellectual Property used or held for use by the Company-Owned IP Rights, Company and its subsidiaries free and clear of all Liens (except for Permitted Liens. Except as would not be material to the Company Entities taken as a whole, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP).
(c) None of the Company-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company Entities. There is no Action pending or, to the Seller’s Knowledge, threatened against any Company Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the Seller’s Knowledge, there has been and there is no written allegation made by any Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights by any Person.
(e) Except as would not reasonably be expected to be material to the Company Entities and its subsidiaries, taken as a whole, neither the operation Company, nor any of its subsidiaries, nor the conduct of the business of the Company and its subsidiaries is infringing, violating, diluting or misappropriating, or has infringed, violated, diluted or misappropriated since January 1, 2017 (or earlier if not presently resolved) any Intellectual Property of any Company Entity as currently conducted as of the date hereofthird person. No Action is pending, and neither the operation Company nor any of any Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No Company Entity its subsidiaries has received any written notice since the Look-back Date alleging that the operation of any Company Entity infringescharge, misappropriatescomplaint, or otherwise violates the Intellectual Property Rights of any other Person (including any claim, demand or request from notice, in each case, alleging any Person that any Company Entity license material infringement, misappropriation, dilution or other material violation of any Intellectual Property Rights). There is no Action pending, or, to of any third person.
(d) To the Seller’s Knowledge, threatened against any Company Entity alleging that the operation Knowledge of the business of any Company Entity Company, no third person is infringing, violating, diluting or misappropriating, or has infringed, violated, diluted or misappropriated since January 1, 2017 (or otherwise violated earlier if not presently resolved) any Intellectual Property Right owned by the Company or its subsidiaries.
(e) The Company and its subsidiaries (i) have taken commercially reasonable measures to protect the confidentiality of the material Trade Secrets of the Company and its subsidiaries and (ii) require any third partyemployee of the Company or its subsidiaries or any other person who creates or develops material Intellectual Property on behalf of the Company or its subsidiaries to assign to the Company or its subsidiaries all of such employee’s or such other person’s, as applicable, rights in such Intellectual Property, and the Company or its subsidiaries owns all such Intellectual Property.
(f) Except as set forth on Section 4.11(f) of the Seller Disclosure Letter and as would not reasonably be expected to be material to the Company Entities and its subsidiaries, taken as a wholetogether, neither the execution and delivery of this Agreement by the Company Entities have secured from all foundersnor the consummation by the Company of any of the transactions contemplated hereby, consultants, advisors, employees, freelancers, writers, and independent contractors who independently nor compliance by the Company with any of the terms or jointly contributed to or participated provisions hereof will result in the conceptionloss, reduction to practiceforfeiture, creation cancellation, suspension, limitation, termination or development of any Intellectual Property Right for or on behalf other impairment of, or under give rise to any right of any person to cancel, suspend, limit, terminate or otherwise impair the direction or supervision of, right of the Company Entities or its subsidiaries to own or use or otherwise exercise any other rights that the Company or its subsidiaries currently has with respect to any Intellectual Property, nor require the consent of any person in respect of any such Intellectual Property.
(eachi) The Company or its subsidiaries owns or has a valid right to access and use all material computer systems, a “Contributor”)networks, unencumbered hardware, Software and unrestricted exclusive ownership ofequipment used to process, all of the Intellectual Property Rights developed or created store, maintain and operate data, information and functions used in connection with the employment Company’s business as currently conducted (the “Company IT Systems”) and (ii) the Company IT Systems are adequate for, and operate and perform in all material respects as required in connection with, the operation of the Company’s business as currently conducted, and have not suffered any material outages or engagement unauthorized intrusions since January 1, 2017.
(h) Except where the failure to take such action would not reasonably be expected to be material to the Company and its subsidiaries, taken together, the Company and its subsidiaries (i) have implemented commercially reasonable data backup, data storage, system redundancy and disaster avoidance and recovery procedures, as well as a commercially reasonable written information security plan and business continuity plan, and the Company and its subsidiaries have taken steps to assess and test such plans and procedures on no less than an annual basis, and such procedures and plans have been proven effective upon such testing in all material respects, (ii) have taken commercially reasonable measures to prevent the introduction of any Contributor, that Malware into the Company Entities do not otherwise own by operation of law. No Contributor owns or, IT Systems and (iii) have implemented commercially reasonable security measures designed to prevent and detect any advanced persistent threats to the SellerCompany IT Systems and, as of the date of this Agreement, no such advanced persistent threats have been detected.
(i) Each of the Company and its subsidiaries has taken commercially reasonable measures to protect the confidentiality of its clients and their personnel’s KnowledgePersonal Information and other Personal Information to which it has access and to prevent unauthorized access, claims any rightsmodification, licensesloss, claims theft, disclosure or interest whatsoever other misuse of such information, including by implementing commercially reasonable measures with respect to any Company-Owned IP Rightsthe administrative, technical and physical security of such Personal Information. Except as would not reasonably be expected to be material to the Company Entities and its subsidiaries, taken as a wholetogether, each Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company Entity, from all current and former Contributors.
(g) The Company Entities have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP Rightsand its subsidiaries have been and are in compliance with all applicable Information Privacy and Security Laws and all applicable terms and conditions of all Contracts, terms of use and privacy and security policies that regulate or limit the creation, receipt, transfer, collection, storage, maintenance, processing, use, disclosure or transmission of, or otherwise relate to the privacy, security or protection of, medical records, patient information or any other data or non-public Personal Information made available to, created, received, transferred, collected, stored, maintained, processed, used, disclosed or transmitted by the Company or its subsidiaries, including “business associate” agreements and website privacy policies, and to the Seller’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures not received any written notice of any such Trade Secrets. The Company Entities have entered into reasonable confidentiality agreements with each Person having access to the Company Entities’ Trade Secrets. To the Seller’s Knowledge, no such Person is in violation of any such agreement.
(h) The Company Entities exclusively own all right, title and interest in and to, or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to of the foregoing. Neither the Company Entities’ business (subject to Section 4.11(b) with respect to the Company-Owned IP Rights) and all such Company IP Rights shall be owned or available for use by the Company Entities immediately after the Closing on terms and conditions identical to those under which the Company Entities owned or used such Company IP Rights immediately prior to the Closing. The Company Entities may exercise, transfer, or license the Company IP Rights without material restriction or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict its subsidiaries has experienced an incident of breach, unauthorized access, disclosure, use, destruction, compromise, loss or impair the right unavailability of any Personal Information that the Company Entities to transferor any of its subsidiaries (or a third person on behalf of any of them) creates, alienatereceives, enforcetransfers, owncollects, use stores, maintains, processes, uses, discloses or licensetransmits, including a breach of security or affect the validity or enforceability of, any Company-Owned IP Rights.
(i) The Company Entities (i) have taken commercially reasonable steps to protect the confidentiality, integrity and breach of security of the Company Systems system as defined under U.S. state Information Privacy and have implemented and comply with commercially reasonable written data and information security, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and (ii) have taken commercially reasonable steps to assess and test such plans and procedures, and such assessments and tests have not identified any material issues that remain unremedied. Since Security Laws or a Personal Data Breach as defined by the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied in all material respects. To the Seller’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied in all material respects. The Company Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities as presently conductedGeneral Data Protection Regulation.
(j) The Neither the Company Entities nor any of its subsidiaries has disclosed or delivered to any escrow agent or any other person (other than an employee) any of the source code for any Software owned by the Company or any of its subsidiaries, and no other person has the right, contingent or otherwise, to obtain access to such source code. No event has occurred, and, to the Seller’s Knowledge, any third Person using Personal Data on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal Data), the Company Entities’ Contracts, and applicable Privacy Laws (including the most current version Knowledge of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back DateCompany, no Company Entity has received any written orcircumstance or condition exists, to the Seller’s Knowledge, unwritten claims, notices that (with or complaints asserting non-compliance with applicable Privacy Laws without notice or privacy statements, policies, procedures lapse of time or Contracts regarding the Company Entities’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal Databoth) will, or alleging a violation would reasonably be expected to, result in the release, delivery, license or disclosure of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the Seller’s Knowledge, threatened against any Company Entity relating to any of the foregoing. The Company Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used source code for any Software owned by the Company Entities against or any unauthorized useof its subsidiaries to any person who is not as of the date of this Agreement a current employee.
(k) Except as would not reasonably be expected to be material to the Company and its subsidiaries, access taken together, neither the Company nor any of its subsidiaries uses or disclosuredistributes, or has used or distributed, any open source Software under any license that would require the Company or any of its subsidiaries to disclose or distribute the Company’s proprietary source code included in any of the Intellectual Property owned by the Company or any of its subsidiaries, to license such source code for the purpose of making derivative works for free, attribute to any person, dedicate to the public or to make available for redistribution to any person such source code at no or minimal charge.
(l) The Company and its subsidiaries have cybersecurity and data breach insurance that is consistent with industry standards in respect of the Company IT Systems and the nature and volume of Personal Information and other non-public information that any of them (or a third party on behalf of any of them) collects, stores, uses, maintains or transmits.
Appears in 1 contract
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a3.11(a) of the Seller Company Disclosure Letter sets forth a list of all (i) Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, included in the Company-Owned IP Rights (the “Company Registered IP”) and (ii) material Software included in the Company-Owned IP Rights.
(b) The Company EntitiesTarget Companies, as the case may be, exclusively own all right, title and interest in and to the Company-Owned IP Rights, free and clear of all Liens except for Permitted Liens. Except as would not be material to the Company Entities Target Companies taken as a whole, (i) the Company Registered IP is subsisting, valid, and enforceable, and (ii) the Company Entities Target Companies are current in the payment of all registration, maintenance and renewal fees with respect to the Company Registered IP.
(c) None of the Company-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company EntitiesTarget Companies. There is no Action pending or, to the SellerCompany’s Knowledge, threatened against any Target Company Entity concerning the ownership, use, scope, patentability, registrabilityregisterability, validity or enforceability of any Company-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company Registered IP) and the Company Entities Target Companies have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the SellerCompany’s Knowledge, there has been and there is no written allegation made by any Target Company Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material Company-Owned IP Rights by any Person.
(e) Except as would not reasonably be expected to be material to the Company Entities Target Companies taken as a whole, the operation of any Target Company Entity as currently conducted as of the date hereof, and the operation of any Target Company Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No Target Company Entity has received any written notice since the Look-back Date alleging that the operation of any Target Company Entity infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Target Company Entity license any Intellectual Property Rights). There is no Action pending, or, to the SellerCompany’s Knowledge, threatened against any Target Company Entity alleging that the operation of the business of any Target Company Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third party.
(f) Except as set forth on Section 4.11(f3.11(f) of the Seller Company Disclosure Letter and as would not reasonably be expected to be material to the Company Entities Target Companies taken as a whole, the Company Entities Target Companies have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under the direction or supervision of, the Company Entities Target Companies (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company Entities Target Companies do not otherwise own by operation of law. No Contributor owns or, to the SellerCompany’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any Company-Owned IP Rights. Except as would not reasonably be expected to be material to the Company Entities Target Companies taken as a whole, each Target Company Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company EntityTarget Company, from all current and former Contributors.
(g) The Company Entities Target Companies have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company IP Rights, and to the SellerCompany’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Company Entities Target Companies have entered into reasonable confidentiality agreements with each Person having access to the Company EntitiesTarget Companies’ Trade Secrets. To the SellerCompany’s Knowledge, no such Person is in violation of any such agreement.
(h) The Company Entities Target Companies exclusively own all right, title and interest in and to, or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company IP Rights that are material to the Company EntitiesTarget Companies’ business (subject to Section 4.11(b3.11(b) with respect to the Company-Owned IP Rights) and Rights)and all such Company IP Rights shall be owned or available for use by the Company Entities Target Companies immediately after the Closing on terms and conditions identical to those under which the Company Entities Target Companies owned or used such Company IP Rights immediately prior to the Closing. The Company Entities Target Companies may exercise, transfer, or license the Company IP Rights without material restriction or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby will restrict or impair the right of the Company Entities Target Companies to transfer, alienate, enforce, own, use or license, or affect the validity or enforceability of, any Company-Owned IP Rights.
(i) Except as would not reasonably be expected to be material to the Target Companies taken as a whole, no Target Company has combined Open Source Software with, or uses or has used any Open Source Software in connection with, any Software, the copyright in which is owned by any Target Company (the “Company Software”), such that any Company Software would become subject to the terms of the license under which such Open Source Software is licensed in a manner that would require any distribution, licensing or disclosure of any Company Software (including any source code), create obligations for any Target Company to grant, or purport to grant, to any third party any rights or immunities under any Company-Owned IP Rights (including any patent non-asserts or patent licenses), or impose any present economic limitations on any Target Company’s commercial exploitation thereof. The Target Companies are in material compliance with the terms and conditions of all relevant licenses for Open Source Software used by the Target Companies, including notice and attribution obligations. No Target Company Entities has delivered, licensed or made available, or is under a duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any Company Software to any escrow agent or other Person who is not an employee or consultant acting on behalf of any Target Company subject to a valid and enforceable confidentiality agreement.
(j) The Target Companies (i) have taken commercially reasonable steps to protect the confidentiality, integrity and security of the Company Systems and have implemented and comply with commercially reasonable written data and information security, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and (ii) have taken commercially reasonable steps to assess and test such plans and procedures, and such assessments and tests have not identified any material issues that remain unremediedunremediated. Since the Look-back Date, the Company Systems have not been affected by any material failure that has not been remedied remediated in all material respects. To the SellerCompany’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company Systems or have not been remedied remediated in all material respects. The Company Entities Target Companies have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company Entities Target Companies as presently conducted.
(jk) The Company Entities Target Companies (and, to the Seller’s Knowledge, and any third Person using Personal Data Information on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company Systems (and the data therein, including Personal DataInformation), the Company EntitiesTarget Companies’ Contracts, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable), including by providing and making accessible a privacy statement and terms of use regarding the treatment of all Personal Information used by the Target Companies to individuals from whom such Personal Information was collected or to whom such Personal Information relates. Since the Look-back Date, no Target Company Entity has received any written or, to the Seller’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company EntitiesTarget Companies’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal DataInformation, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the SellerCompany’s Knowledge, threatened against any Target Company Entity relating to any of the foregoing. Since the Look-back Date, neither any Target Company, nor, to the Company’s Knowledge, any Person to whom any Target Company has provided Personal Information or processes such Personal Information on behalf of any Target Company, has been subject to any breach or unauthorized access to or use, disclosure or destruction of, Personal Information used by any Target Company. The Company Entities Target Companies have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data Information used by the Company Entities Target Companies against any unauthorized use, access or disclosure.
Appears in 1 contract
Samples: Business Combination Agreement (Magnum Opus Acquisition LTD)
Intellectual Property; Information Technology; Privacy. (a) Section 4.11(a) of the Seller DV Disclosure Letter sets forth a list of all (i) Patents, registered Marks, registered Copyrights and domain name registrations, including any applications for any of the foregoing, included in the CompanyDV-Owned IP Rights (the “Company DV Registered IP”) and (ii) material Software included in the CompanyDV-Owned IP Rights.
(b) The Company DV Entities, as the case may be, exclusively own all right, title and interest in and to the CompanyDV-Owned IP Rights, free and clear of all Liens except for Permitted Liens. Except as would not be material to the Company DV Entities taken as a whole, (i) the Company DV Registered IP is subsisting, valid, and enforceable, and (ii) the Company DV Entities are current in the payment of all registration, maintenance and renewal fees with respect to the Company DV Registered IP.
(c) None of the CompanyDV-Owned IP Rights are subject to any Government Order adversely affecting the use thereof or rights thereto by the Company DV Entities. There is no Action pending or, to the SellerDV’s Knowledge, threatened against any Company DV Entity concerning the ownership, use, scope, patentability, registrability, validity or enforceability of any CompanyDV-Owned IP Rights (other than proceedings in the Ordinary Course of Business before any Governmental Authority related to the application for any item of Company DV Registered IP) and the Company DV Entities have not received any written notices regarding the foregoing.
(d) Since the Look-back Date, to the SellerDV’s Knowledge, there has been and there is no written allegation made by any Company DV Entity of, and there has been no and there is no infringement, misappropriation or other violation of any material CompanyDV-Owned IP Rights by any Person.
(e) Except as would not reasonably be expected to be material to the Company DV Entities taken as a whole, the operation of any Company DV Entity as currently conducted as of the date hereof, and the operation of any Company DV Entity as conducted since the Look-back Date, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property Rights of any other Person. No Company DV Entity has received any written notice since the Look-back Date alleging that the operation of any Company DV Entity infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any other Person (including any demand or request from any Person that any Company DV Entity license any Intellectual Property Rights). There is no Action pending, or, to the SellerDV’s Knowledge, threatened against any Company DV Entity alleging that the operation of the business of any Company DV Entity has infringed, misappropriated or otherwise violated any Intellectual Property Right of any third party.
(f) Except as set forth on Section 4.11(f) of the Seller DV Disclosure Letter and as would not reasonably be expected to be material to the Company DV Entities taken as a whole, the Company DV Entities have secured from all founders, consultants, advisors, employees, freelancers, writers, and independent contractors who independently or jointly contributed to or participated in the conception, reduction to practice, creation or development of any Intellectual Property Right for or on behalf of, or under the direction or supervision of, the Company DV Entities (each, a “Contributor”), unencumbered and unrestricted exclusive ownership of, all of the Intellectual Property Rights developed or created in connection with the employment or engagement of any Contributor, that the Company DV Entities do not otherwise own by operation of law. No Contributor owns or, to the SellerDV’s Knowledge, claims any rights, licenses, claims or interest whatsoever with respect to any CompanyDV-Owned IP Rights. Except as would not reasonably be expected to be material to the Company DV Entities taken as a whole, each Company DV Entity has obtained written and enforceable Contracts with respect to invention disclosure and present assignments of such Intellectual Property Rights to such Company DV Entity, from all current and former Contributors.
(g) The Company DV Entities have taken commercially reasonable steps to protect and maintain any Trade Secrets included in the Company DV IP Rights, and to the SellerDV’s Knowledge, there have been no misappropriation or unauthorized uses or disclosures of any such Trade Secrets. The Company DV Entities have entered into reasonable confidentiality agreements with each Person having access to the Company DV Entities’ Trade Secrets. To the SellerDV’s Knowledge, no such Person is in violation of any such agreement.
(h) The Company DV Entities exclusively own all right, title and interest in and to, or otherwise possess valid, enforceable and sufficient licenses and rights to, all Company DV IP Rights that are material to the Company DV Entities’ business (subject to Section 4.11(b) with respect to the CompanyDV-Owned IP Rights) and all such Company DV IP Rights shall be owned or available for use by the Company DV Entities immediately after the Closing on terms and conditions identical to those under which the Company DV Entities owned or used such Company DV IP Rights immediately prior to the Closing. The Company DV Entities may exercise, transfer, or license the Company DV IP Rights without material restriction or material payment to any Person. Neither this Agreement nor any of the transactions contemplated hereby Transactions will restrict or impair the right of the Company DV Entities to transfer, alienate, enforce, own, use or license, or affect the validity or enforceability of, any CompanyDV-Owned IP Rights.
(i) The Company DV Entities (i) have taken commercially reasonable steps to protect the confidentiality, integrity and security of the Company DV Systems and have implemented and comply with commercially reasonable written data and information security, business continuity and disaster recovery plans and procedures that are consistent with industry best practices and applicable Laws, and (ii) have taken commercially reasonable steps to assess and test such plans and procedures, and such assessments and tests have not identified any material issues that remain unremedied. Since the Look-back Date, the Company DV Systems have not been affected by any material failure that has not been remedied in all material respects. To the SellerDV’s Knowledge, since the Look-back Date, there have been no security breaches that materially affected the operation of the Company DV Systems or have not been remedied in all material respects. The Company DV Entities have purchased a sufficient number of licenses (whether licensed by seats or otherwise) for all Software used in or necessary for the operation of the businesses of the Company DV Entities as presently conducted.
(j) The Company DV Entities (and, to the SellerDV’s Knowledge, any third Person using Personal Data on their behalf) comply in all material respects with its internal policies and privacy statements, policies and procedures related to privacy and security of Company DV Systems (and the data therein, including Personal Data), the Company DV Entities’ Contracts, and applicable Privacy Laws (including the most current version of the Payment Card Industry Data Security Standards, as applicable). Since the Look-back Date, no Company DV Entity has received any written or, to the SellerDV’s Knowledge, unwritten claims, notices or complaints asserting non-compliance with applicable Privacy Laws or privacy statements, policies, procedures or Contracts regarding the Company DV Entities’ information practices or the use, access, collection, retention, processing, disclosure, modification or destruction of any Personal Data, or alleging a violation of any individual’s privacy, publicity or confidentiality rights, including from the U.S. Federal Trade Commission, any similar foreign bodies, or any other Governmental Authority and there is no Action pending, or, to the SellerDV’s Knowledge, threatened against any Company DV Entity relating to any of the foregoing. The Company DV Entities have taken reasonable actions (including implementing reasonable technical, physical or administrative safeguards) to protect all Personal Data used by the Company DV Entities against any unauthorized use, access or disclosure.
Appears in 1 contract
Samples: Business Combination Agreement (Goal Acquisitions Corp.)
