Intellectual Property; Information Technology. Section 3.15 of the Company Disclosure Schedule sets forth a true and complete list of (i) all Intellectual Property that is owned by the Company or any of its Subsidiaries (the “ Company Owned Intellectual Property ”) that is registered or subject to an application for registration or that is otherwise material to the business of the Company and its Subsidiaries taken as a whole and (ii) material Intellectual Property that the Company or one of its Subsidiaries is licensed or otherwise permitted by other persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries (the “ Company Exclusively Licensed Intellectual Property”). Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (A) the Company or any of its Subsidiaries has the exclusive title to the Company Owned Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use in the business of the Company and its Subsidiaries taken as a whole, (D) the use of any Intellectual Property by the Company or its Subsidiaries (x) does not, to the Knowledge of the Company, infringe on or otherwise violate the rights of any person in respect of any Intellectual Property and (y) is in accordance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property, (E) none of the Company or its Subsidiaries has received during the past three years preceding the date hereof any written notice of any threatened claim with respect to any Intellectual Property used or held for use in the business of the Company and its Subsidiaries (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F) to the Knowledge of the Company, no person is infringing on or otherwise violating any right of the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Property, (G) neither the Company nor any of its Subsidiaries has during the past three years preceding the date hereof asserted or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property and
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
Intellectual Property; Information Technology. (a) Section 3.15 3.11(a) of the Company Disclosure Schedule Schedules sets forth forth, as of the date hereof, a true and complete list list, including record (and, if different, beneficial) owner, jurisdiction and serial/application numbers and dates, of (i) all Company Registered Intellectual Property that Property. The applicable Group Company is owned by the Company or any of its Subsidiaries (sole and exclusive owner, has valid and enforceable rights in, and has the “ Company Owned Intellectual Property ”) that is registered or subject to an application for registration or that is otherwise material to the business of the Company and its Subsidiaries taken as a whole and (ii) material Intellectual Property that the Company or one of its Subsidiaries is licensed or otherwise permitted by other persons unrestricted right to use, including, without limitation, of all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries (the “ Company Exclusively Licensed Registered Intellectual Property”). , free and clear of all Liens other than Permitted Liens.
(b) Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, have a Company Material Adverse Effect on Effect, no Proceedings are pending or, to the knowledge of the Company, (A) the Company or threatened against any of its Subsidiaries has the exclusive title Group Companies by any Person challenging the validity, enforceability, or ownership of, or the right to the Company Owned use, sell, license or sublicense any Intellectual Property that is registered or subject to an application for registrationRights currently owned, free and clear of all Encumbrances other than Permitted Encumbranceslicensed, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use by any of the Group Companies or, where any of the Intellectual Property Rights are pending registration, challenging registrability of the Intellectual Property Rights. As of the date hereof and since the Lookback Date, none of the Group Companies has been a party to any pending Proceeding or received any threat (including unsolicited offers to license patents) in writing claiming infringement, misappropriation, dilution or other violation of the Intellectual Property Rights of any Person or challenging the scope, ownership, validity or enforceability of any Intellectual Property Rights owned or purposed to be owned or licensed by any of the Group Companies, except in each case as would not reasonably be expected to have a Company Material Adverse Effect. To the knowledge of the Company, the conduct of the business of the Company Group Companies (including the development and its Subsidiaries taken as a wholeoperation of their assets and projects) has not infringed, (D) misappropriated, diluted or otherwise violated the use Intellectual Property Rights of any Intellectual Property by Person in any material respects. To the Company or its Subsidiaries (x) does not, to the Knowledge of the Company, infringe on or otherwise violate the rights of any person in respect of any Intellectual Property and (y) is in accordance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property, (E) none of the Company or its Subsidiaries has received during the past three years preceding the date hereof any written notice of any threatened claim with respect to any Intellectual Property used or held for use in the business of the Company and its Subsidiaries (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F) to the Knowledge knowledge of the Company, no person Person is infringing on infringing, misappropriating, diluting or otherwise violating any material Intellectual Property Rights owned by any of the Group Companies. A Group Company, as the case may be, either own(s), has a valid license to use or otherwise has the lawful right to use all of the Intellectual Property Rights and Software used in the conduct of its business as currently conducted, except for such Intellectual Property Rights and Software with respect to which the lack of such ownership, license or right to use would not reasonably be expected to have a Company Material Adverse Effect. To the knowledge of the Company, no current or former founder, officer, executive, director, shareholder or employee of any of the Group Companies owns any material Intellectual Property Rights used in the conduct of the businesses of the Group Companies. To the knowledge of the Company, except (i) for any Permitted Lien, (ii) as set forth on Section 3.11(a) of the Company Disclosure Schedules or its Subsidiaries (iii) as provided for in any Contract set forth in Section 3.11(a) of the Company Disclosure Schedules, all material Intellectual Property Rights owned by any of the Group Companies is fully transferable, alienable and licensable without restriction and without payment of any kind to any other Person and without approval of any other Person. To the knowledge of the Company, no funding, facilities or personnel of any educational institution or Governmental Entity were used, directly or indirectly, to develop or create, in whole or in part, any material Intellectual Property Rights owned by the Group Companies.
(c) The Group Companies have undertaken commercially reasonable efforts to protect the confidentiality of any material trade secrets or material proprietary information acquired or developed by them in the course of conducting their businesses or which are the subject of confidentiality obligations owed to other Person. To the knowledge of the Company, no current or former employee of any of the Group Companies has misappropriated or improperly disclosed trade secrets or confidential information of any other Person in the course of the employment with respect the Group Companies.
(d) To the knowledge of the Company, all Persons including each Group Company’s employees, consultants, advisors and independent contractors who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any material Company Owned Intellectual Property (each such person, a “Creator”) are not in violation of any obligations to the Group Companies to maintain in confidence the trade secrets of the applicable Group Companies.
(e) There are no current or, to the Company’s knowledge, threatened, claims from any Creator for compensation or remuneration for inventions invented, copyright works created or any similar claim.
(f) Each Group Company has taken commercially reasonable steps to safeguard and maintain the secrecy of any material trade secrets (including source code to Company Products) owned by each Group Company. To the Company’s knowledge, there has been no unauthorized access to or disclosure of any material trade secrets owned by a Group Company.
(g) Except as set forth in Section 3.11(g) of the Company Disclosure Schedules, no facilities of a university, college, other educational institution or research center was used in the development of the Company Owned Intellectual Property. Except as set forth in Section 3.11(g) of the Company Disclosure Schedules, to the knowledge of the Company, no employee, consultant or independent contractor of the Company who was involved in, or who contributed to, the creation or development of any Company Owned Intellectual Property, has performed services for or otherwise was under restrictions resulting from his/her relations with any government, university, college or other educational institution or research center during a period of time during which any Company Owned Intellectual Property were created or during such time that such employee, consultant or independent contractor was also performing services for or for the benefit of the Company, nor has any Company Exclusively Licensed Intellectual Property, (G) neither the Company nor such person created or developed any of its Subsidiaries has during the past three years preceding the date hereof asserted or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property with any Governmental Grant.
(h) No Group Company accesses, uses, modifies, or links to, nor has accessed, used, modified, linked to, or created derivative works of any Public Software in a manner which would subject any Company Owned Intellectual Property to any obligations set forth in the license for such Public Software, that (i) require any Company Owned Intellectual Property to be licensed, sold, disclosed, distributed, hosted or otherwise made available, including in source code form and/or for the purpose of making derivative works, for any reason, (ii) grant, or require any Group Company to grant, the right to decompile, disassemble, reverse engineer or otherwise derive the source code or underlying structure of any Company Owned Intellectual Property, or (iii) limit in any manner the ability to charge license fees or otherwise seek compensation in connection with marketing, licensing or distribution of any Company Owned Intellectual Property.
(i) There are, and since the Lookback Date have been, no material defects or any Malicious Code in any of the Company Exclusively Licensed Products currently offered by the Group Companies that have resulted in such Company Products not performing substantially in accordance with their user specifications or functionality descriptions in any material respect.
(j) The Group Companies own, lease, license, or otherwise have the legal right to use all IT Assets. Such IT Assets are sufficient in all material respects for the immediate and reasonably foreseeable needs of the Group Companies’ business as it is currently conducted. The IT Assets operate and perform, in all material respects, as required by the Group Companies, and have not materially malfunctioned or failed since the Lookback Date. Each Group Company has taken commercially reasonable actions to protect the integrity and security of the IT Assets (and all material information stored or contained therein or transmitted thereby), including by implementing procedures designed to inhibit unauthorized access and the introduction of any Malicious Code. The Group Companies have implemented and maintain multi-factor authentication for external access to the IT Systems (other than public-facing portions of the IT Systems, such as websites) and commercially reasonable security, disaster recovery and business continuity plans and procedures, which have proven effective upon testing in all material respects. To the knowledge of the Company, the Transactions or any actions constituting the Transactions will not adversely affect the ability of any of the Group Companies to use the IT Assets or any part thereof.
(k) To the knowledge of the Company, since the Lookback Date there have been no material unauthorized intrusions or breaches of the security of the IT Assets or instances of disclosure, acquisition, destruction, damage, loss, corruption, alteration, use or misuse of any data, including personal information or trade secrets stored on the IT Assets that, pursuant to any Law, would require the Group Companies to notify individuals of such breach or intrusion or that was or would reasonably be expected to be material to the Group Companies.
(l) No Governmental Entity has any government purpose rights in any Intellectual Property andRights of any Company Product, which could reasonably be expected to diminish the ability of the Group Companies to sell such products to a Governmental Entity or otherwise commercialize such Company Product in any material respect.
Appears in 1 contract
Intellectual Property; Information Technology. (a) Section 3.15 3.14(a) of the Company Disclosure Schedule sets forth a true and complete list of (i) all Intellectual Property that is owned by the Company or any of its Subsidiaries (the “ "Company Owned Intellectual Property ”Property") that is registered or subject to an application for registration or that is otherwise material to the business of the Company and its Subsidiaries taken as a whole and (ii) material Intellectual Property that the Company or one of its Subsidiaries is licensed or otherwise permitted by other persons Persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries (the “ "Company Exclusively Licensed Intellectual Property”"). .
(b) Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (A) the Company or any of its Subsidiaries has the exclusive right, title and interest in, or to the Company Owned Intellectual Property that is registered (or subject should have been, pursuant to an application for registrationthis Section 3.14) set forth in Section 3.14 of the Company Disclosure Schedule, free and clear of all Encumbrances other than Permitted Encumbrances, Encumbrances (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, enforceable and (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use in the business of the Company and its Subsidiaries taken as a whole, (D) the . The use of any Intellectual Property by the Company or its Subsidiaries (x) does not, to the Knowledge of the Company, infringe on or otherwise violate the rights of any person Person in respect of any Intellectual Property and (y) is in accordance material compliance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property.
(c) Except as set forth in Section 3.14 of the Company Disclosure Schedule, (E1) none of the Company or its Subsidiaries has received during the past three (3) years preceding the date hereof any written notice of any threatened or pending claim with respect to any Intellectual Property used or held for use in the business of the Company and its Subsidiaries challenging the Company's rights in such Intellectual Property or challenging the validity of the Company's Intellectual Property (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F2) to the Knowledge of the Company, no person Person is infringing on or otherwise violating any right of the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Property, except to the extent such infringement or violation has not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company and (G3) neither the Company nor any of its Subsidiaries has during the past three (3) years preceding the date hereof asserted or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property.
(d) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, no Company Owned Intellectual Property andis being used or enforced in a manner that could reasonably be expected to result in the abandonment, cancellation or unenforceability of such Company Owned Intellectual Property and the Company and its Subsidiaries have timely made all filings and payments with the appropriate foreign and domestic agencies required to maintain in subsistence all Company Owned Intellectual Property that is registered or subject to an application for registration.
(e) Each of the Company and its Subsidiaries has taken actions reasonably necessary to maintain the secrecy of all Trade Secrets which constitute Company Owned Intellectual Property and all use by or disclosure to any Person of such Trade Secrets has been pursuant to the terms of a valid, written confidentiality agreement with such Person that is legally enforceable by Parent. For purposes of this Agreement, "Trade Secrets" means all nonpublic information, processes, product specifications, formulae, trade secrets, inventions, know-how, customer lists, supplier lists, methods, algorithms, personal data, financial data, databases and other confidential information and rights in any jurisdiction, foreign or domestic, to limit the use or disclosure thereof by any Person.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
Intellectual Property; Information Technology. (a) Section 3.15 3.14(a) of the Company Disclosure Schedule sets forth a true an accurate and complete list of all (i) all registered or registerable Intellectual Property and pending applications with respect thereto that are owned by any Group Company as of the date of this Agreement and (ii) Intellectual Property that is owned by the Company or any of its Subsidiaries (the “ Company Owned Intellectual Property ”) that is registered or subject are exclusively licensed to an application for registration or that is otherwise and are material to the respective business of the Company and its Subsidiaries taken Subsidiaries, as a whole conducted as of the date hereof, indicating for each such item the registration number or publication number, as applicable, and (ii) material the jurisdiction in which such Intellectual Property that the has been issued or is registered.
(b) The Company or one of and its Subsidiaries is licensed own or otherwise permitted by possess adequate licenses or other persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries (the “ Company Exclusively Licensed Intellectual Property”). Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (A) the Company or any of its Subsidiaries has the exclusive title to the Company Owned Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted enforceable rights to use (in each case, free and clear of all Encumbrances other than any Liens, except for Permitted Encumbrances) ), all Intellectual Property used in, or held for use in necessary to conduct, the business of the Company and or its Subsidiaries taken as a whole, currently conducted and as currently proposed to be conducted.
(Dc) the The use of any Intellectual Property in connection with the operation of their respective businesses or otherwise by the Company or its Subsidiaries (x) does notnot infringe upon, to the Knowledge of the Companymisappropriate, infringe on or otherwise violate and has not infringed upon, misappropriated or otherwise violated the Intellectual Property rights of any person in respect of any Intellectual Property and (y) is in accordance with any applicable agreement license pursuant to which the Company or any of its Subsidiaries possesses acquired the right to use any such Intellectual Property. Neither the Company nor any of its Subsidiaries has received any written notice of, (E) none and to the knowledge of the Company, there is no threatened, assertion or claim that it, or the business or activities of the Company or any of its Subsidiaries (including the commercialization and exploitation of their products and services), is infringing upon, diluting, misappropriating, or otherwise violating or has received during the past three years preceding the date hereof any written notice of any threatened claim with respect to infringed upon, diluted, misappropriated, or otherwise violated any Intellectual Property used right of any person, including any demands or held unsolicited offers to license any Intellectual Property nor are there any facts or circumstances that would form the basis for use in any claim against the Company or any of its Subsidiaries of infringement, unauthorized use, or violation of any Intellectual Property right of any person, or challenging the ownership, use, validity or enforceability of any Intellectual Property owned by any Group Company. Neither the Company nor any of its Subsidiaries nor the business or activities of the Company and or any of its Subsidiaries (includingincluding the commercialization and exploitation of their products and services) infringes, but not limited todilutes or misappropriates or has infringed, diluted or misappropriated any cancellation, opposition or other action before an intellectual property registry), (F) to Intellectual Property rights of any person. To the Knowledge knowledge of the Company, no person (including current and former officers, employees, consultants and contractors of any Group Company) is currently infringing, diluting or misappropriating Intellectual Property owned by the Company or any of its Subsidiaries.
(d) With respect to each Intellectual Property owned by any Group Company, (i) such Group Company is the owner of the entire right, title and interest in and to such Intellectual Property, and is entitled to use, transfer and license such Intellectual Property in the continued operation of its respective business without payment to any Third Party (other than to one or more Governmental Authorities or other similar parties for the purposes of registering and maintaining such rights), (ii) no Group Company is obligated to assign ownership of any such Intellectual Property to any Third Party and (iii) no Group Company is bound by or subject to any non-compete or other restrictions on the operation and scope of its respective business. None of the Intellectual Property owned by any Group Company has been revoked, invalidated or otherwise challenged in whole or in part.
(e) With respect to each item of Intellectual Property licensed to any Group Company, (i) such Group Company has the right to use such Intellectual Property in the continued operation of its respective business in accordance with the terms of the license agreement governing such Intellectual Property, and (ii) no party to any license of such Intellectual Property is in breach thereof or default thereunder.
(f) No person is challenging in writing the validity, enforceable, use or ownership of or, to the knowledge of the Company, threatening to challenge, or infringing on upon, misappropriating, or otherwise violating any right of the Company or any of its Subsidiaries with respect to any Intellectual Property owned by or licensed to the Company or its Subsidiaries.
(g) No Intellectual Property licensed or owned by the Company or its Subsidiaries is being used or enforced in a manner that would result in the abandonment, cancellation or unenforceability of such Intellectual Property.
(h) Each of the Company and its Subsidiaries owns all right, title and interest in and to all Intellectual Property created or developed by, for or under the direction or supervision of the Company or such Subsidiary, and all current or former officers, employees, consultants or contractors who have participated in the creation or development of any such Intellectual Property have executed and delivered to the Company or such Subsidiary a valid and enforceable agreement (i) providing for the non-disclosure by such person of confidential information and (ii) providing for the present assignment by such person to the Company or such Subsidiary of any Intellectual Property developed or arising out of such person’s employment by, engagement by or contract with the Company or such Subsidiary of the Company and, to the knowledge of the Company, no such officer, employee, consultant or contractor is in material violation of any term of any such agreement.
(i) There are no outstanding Orders issued against any Intellectual Property owned by any Group Company that restricts or limits the use or licensing thereof by any Group Company.
(A) A Group Company owns or has a valid right or license to use or otherwise exploit all Software used in connection with the businesses of the Group Companies as currently conducted, and (B) a Group Company possesses the source code, object code and documentation for all such Software that is proprietary to and owned by any Group Company (the “Company Owned Software”), (C) no Third Party has any ownership right or interest in any Company Owned Software, (D) the Group Companies have not disclosed the source code for any Company Owned Software to any Third Party, and (E) no such Software is subject to any obligation (including the terms of any open source license) that would require any Group Company to (i) disclose to any person any source code or Trade Secret that is part of any Company Owned Software, (ii) not charge fees or other consideration for such Software, or (iii) grant any right to any person to decompile or otherwise reverse-engineer such Software.
(k) The consummation of the Transactions will not result in the loss or impairment or the restriction on use or other exploitation of any Intellectual Property owned by or licensed to any Group Company.
(l) The Company Exclusively Licensed and its Subsidiaries have taken all actions reasonably necessary to (i) maintain and protect each material item of Intellectual Property that they own or are licensed or otherwise authorized to use, and (ii) protect the confidentiality and value of trade secrets and other know-how or confidential or proprietary information (together, the “Trade Secrets”) that are owned by any Group Company or provided to any Group Company by any Third Party under conditions of confidentiality, including having and effectively implementing in the business operations of the Company and its Subsidiaries Intellectual Property, (G) neither information security and privacy measures comparable with those implemented by similarly situated companies in the U.S. and the PRC operating in the industry of the Company nor and its Subsidiaries. To the knowledge of the Company, (A) there has been no unauthorized disclosure or use of any Third Party’s Trade Secrets by any officer, employee, contractor, or consultant of any Group Company, and none of the Company’s or its Subsidiaries’ Trade Secrets have been disclosed to any Third Party except pursuant to valid and appropriate written non-disclosure agreements or license agreements or pursuant to obligations to maintain confidentiality arising by operation of Law, and (B) there has been no material breach of any Group Company’s security measures wherein any Trade Secrets have been disclosed or may have reasonably been disclosed without authorization to any Third Party. Immediately subsequent to the Effective Time, all Intellectual Property owned or used by any Group Company shall be owned by or available for use by the Company and its Subsidiaries on terms and conditions identical to those under which the Company and its Subsidiaries owned or used such Intellectual Property immediately prior to the Effective Time.
(m) The Company IT Assets are (A) adequate and sufficient for, and operate and perform in accordance with their documentation and functional specifications and otherwise as required in connection with, the operation of the Company’s and its Subsidiaries’ businesses and the protection of Trade Secrets by the Group Companies, and (B) to the knowledge of the Company, are free from any material defects, viruses, worms and other malware. The Company and its Subsidiaries have implemented reasonable backup, security and disaster recovery measures and technology consistent with industry practices and the Company IT Assets have not failed in any material respect, and to the knowledge of the Company, (i) no person has gained unauthorized access to any material Company IT Assets, and (ii) the data that they process and/or produce with respect to the businesses of the Company and its Subsidiaries has not been corrupted or compromised in any material respect.
(n) None of the Intellectual Property owned by any Group Company is subject to any Contract or other obligation as a result of any funding or support from, or any arrangement with, any Governmental Authority or agency or nonprofit organization.
(o) No Group Company is a party to or bound by any Contract that grants or purports to grant a license, covenant not to xxx or other right under any Intellectual Property of Parent of any of its Subsidiaries Affiliates (other than the Group Companies).
(p) Each Group Company has during information technology systems sufficient in all material respects to operate the past three years preceding business of such Group Company as it is currently conducted and as contemplated to be conducted. Each Group Company has taken reasonable steps and implemented reasonable procedures to ensure that information technology systems used in connection with the date hereof asserted operation of such Group Company, and data stored or threatened transmitted on such systems, are and have been secure and, to assert the knowledge of the Company, such systems are free from any claims of infringement disabling codes or instructions and any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other violations of its rights in software routines or hardware components that are designed to the Company Owned Intellectual Property permit unauthorized access or the unauthorized disablement or erasure of such Company Exclusively Licensed Intellectual Property andProduct (or all parts thereof) or data or other software of users. There have been no unauthorized intrusions or breaches of the security of the information technology systems used in connection with the operation of the Group Companies.
Appears in 1 contract
Samples: Merger Agreement (Tang Liang)
Intellectual Property; Information Technology. (a) Section 3.15 4.17(a) of the Company Disclosure Schedule Letter sets forth forth, as of the date hereof, a true correct and complete list of all worldwide material: (i) Trademark registrations and pending applications, (ii) Domain Name registrations, (iii) Copyright registrations and pending applications and (iv) issued Patents and pending Patent applications, in each case owned by the Company or any of its Subsidiaries. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Company or a Subsidiary of the Company is the sole and exclusive owner of all of the Intellectual Property the list of which was made available to Parent pursuant to the previous sentence, and all such Intellectual Property is subsisting and, to the Knowledge of the Company, valid and enforceable in all material respects. Each of the Company and its Subsidiaries owns the Company Intellectual Property free and clear of all Liens (other than Permitted Liens).
(b) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, each of the Company and its Subsidiaries owns, or is licensed or otherwise possesses legally enforceable rights to use all Intellectual Property that used in their respective businesses as currently conducted.
(c) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries is infringing, misappropriating, diluting or otherwise violating the Intellectual Property of any Person, and there is no action pending or threatening alleging any such infringement, misappropriation, dilution or other violation, in each case except for such infringements, misappropriations, dilutions or other violations which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As of the date hereof, and since two (2) years prior to the date of this Agreement, neither the Company nor any of its Subsidiaries has made or threatened in writing any claim (i) alleging infringement, misappropriation, dilution or other violation (in any Action or otherwise) of Company Intellectual Property by any Person, nor (ii) challenging the ownership, registrability, validity or enforceability of any Intellectual Property of any Person, in both cases which infringements, misappropriations dilutions or other violations or challenges would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no Person is infringing, misappropriating, diluting or otherwise violating any Company Intellectual Property in any material respect.
(d) The Company and each of its Subsidiaries have implemented commercially reasonable measures to maintain and protect the secrecy, confidentiality and value of any Trade Secrets owned by the Company or any of its Subsidiaries (and material to the “ business of the Company Owned Intellectual Property ”) that is registered or subject its Subsidiaries. Except as would not, individually or in the aggregate, reasonably be expect to an application for registration or that is otherwise be material to the business of the Company and its Subsidiaries Subsidiaries, taken as a whole whole, (i) each current and (ii) material Intellectual Property that former employee and independent contractor of, and consultant to, the Company or one its Subsidiary who is privy to such material Trade Secrets or has authored, developed or otherwise created any material Company Intellectual Property has entered into a valid and binding written agreement pursuant to which such employee, independent contractor or consultant agrees to maintain the confidentiality of the confidential information of the Company or its Subsidiaries is licensed or otherwise permitted by other persons and to use, including, without limitation, all Intellectual Property exclusively licensed assign to the Company or any the applicable Subsidiary all rights and interest in such material Intellectual Property authored, developed or otherwise created by such employee, independent contractor or consultant in the course of its Subsidiaries their employment or other relationship with the Company or the applicable Subsidiary (or all such rights vest in the “ Company Exclusively Licensed Intellectual Property”or applicable Subsidiary by operation of law). To the Knowledge of the Company, no employee and no independent contractor or consultant or other third party to any such confidentiality agreement is in breach thereof.
(e) Except as have not had and would not reasonably be expected to havenot, either individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect on Effect, the Company, (A) information technology systems used in connection with the operation of the business of the Company or and its Subsidiaries, including any Software and any servers, systems, sites, circuits, networks, interfaces, platforms and other computer and telecom assets and equipment (collectively, the “IT Systems”) are, as a whole, adequate and sufficient, and in good working condition to effectively perform all information technology operations necessary, for the conduct of its Subsidiaries has the exclusive title to the Company Owned Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use in the business of the Company and its Subsidiaries taken as a wholecurrently conducted. To the Knowledge of the Company, (D) each of the Company and its Subsidiaries is in compliance with all of the Company Material Contracts to the extent relating to privacy and the collection and use of any Intellectual Property by personal information, confidentiality, data protection and IT System security, except for such noncompliance which would not, individually or in the aggregate, reasonably be expected to have a Company or its Subsidiaries Material Adverse Effect.
(xf) does notAs of the date hereof, and since two (2) years prior to the date of this Agreement, to the Knowledge of the Company, infringe on (i) there have been no unauthorized disclosures of Trade Secrets or otherwise violate PII, (ii) there have been no security breaches or compromises in the rights IT Systems used by the Company and its Subsidiaries in their respective businesses, (iii) there have been no interruptions or disruptions in any IT Systems that adversely affected the business of the Company or any person in respect of any Intellectual Property its Subsidiaries, and (yiv) is no claims have been asserted or threatened in accordance with any applicable agreement pursuant to which writing against the Company or any of its Subsidiaries possesses alleging a violation of any third party’s privacy or personal information rights, except, in the right to use any Intellectual Propertycase of clauses (i), (Eii) none and (iii), as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company and its Subsidiaries, in connection with the conduct of their respective businesses, have implemented and maintain commercially reasonable and appropriate business continuity and disaster recovery plans, procedures and facilities, consistent with industry practices of companies offering similar services to preserve the availability, security, and integrity of its and their IT Systems, and the data and information stored thereon, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(g) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have, at all times since April 1, 2016, complied, in all material respects, with its and their own posted or otherwise binding privacy policies, relating to privacy, data protection, or the collection, retention, protection and use of personal information (“PII”) collected, used, or held for use by or on behalf of the Company or any of its Subsidiaries has received during Subsidiaries, (ii) no Actions have been asserted or, to the past three years preceding Knowledge of the date hereof Company, threatened against Company or any written notice of its Subsidiaries, alleging a material violation of any threatened claim Person’s privacy, personal information or data rights in relation to the conduct of the business of the Company or any of its Subsidiaries, (iii) in connection with respect to any Intellectual Property used or held for use in the operation of the business of the Company and its Subsidiaries, the Company and its Subsidiaries (includingtake commercially reasonable measures to protect PII against unauthorized access, but not limited touse, any cancellationmodification, opposition disclosure or other action before an intellectual property registry)misuse, and (Fiv) the Company and its Subsidiaries are in compliance with, and have at all times since May 25, 2018 complied with, the European Union General Data Protection Regulation 2016/679. Except for disclosures of information required by privacy Laws or authorized by the provider of PII, or as described in the Company or any of its Subsidiaries’ privacy policies, or as otherwise is in compliance with applicable privacy Laws, to the Knowledge of the Company, no person is infringing on or otherwise violating any right of the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Property, (G) neither the Company nor any of its Subsidiaries has during shared, sold, rented, or otherwise made available, and does not share, sell, rent or otherwise make available, to third parties any PII in connection with the past three years preceding conduct of the date hereof asserted Company or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property andSubsidiaries’ businesses.
Appears in 1 contract
Intellectual Property; Information Technology. Section 3.15 (a) The Company has made available to Parent, as of the Company Disclosure Schedule sets forth date hereof, a true correct and complete list of all U.S. and non-U.S.
(i) all Intellectual Property that is Trademark registrations and applications, (ii) Domain Name registrations, (iii) Copyright registrations and applications and (iv) issued Patents and Patent applications, in each case owned by the Company or any of its Subsidiaries and which are material to the Company and the Company’s Subsidiaries, taken as a whole. The Company or a Subsidiary of the Company is the sole and exclusive beneficial and, as applicable, record owner of all of the Intellectual Property the list of which was made available to Parent pursuant to the previous sentence, other than Domain Names, and all such Intellectual Property is subsisting and, to the knowledge of the Company, valid and enforceable in all material respects.
(b) Each of the Company and its Subsidiaries owns, or is licensed or otherwise possesses the legally enforceable rights to use, free and clear of all Liens (other than Permitted Liens), all material Intellectual Property used in their respective businesses as currently conducted (the “ “Company Owned Intellectual Property”).
(c) To the knowledge of the Company, neither the Company nor any of its Subsidiaries is infringing or otherwise violating the Intellectual Property of any Person, except for such infringements or violations which would not be reasonably expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. As of the date hereof, and since two (2) years prior to the date of this Agreement, neither the Company nor any of its Subsidiaries has made or threatened in writing any material claim alleging infringement or other violation of Company Intellectual Property by any Person, nor challenging the ownership, registrability, validity or enforceability of any Intellectual Property of any Person, which infringements, other violations or challenges would reasonably be expected to be material, and, to the knowledge of the Company, no Person is infringing or otherwise violating any Company Intellectual Property owned by the Company or any Company Subsidiary in any material respect.
(d) To the knowledge of the Company, there are no Software or other information technology system (“IT System”) that is registered defects or subject to an application for registration or that is otherwise deficiencies material to the business of the Company and its Subsidiaries Subsidiaries, taken as a whole whole. The Company and the Company Subsidiaries take commercially reasonable measures to protect Trade Secrets, personal information and other confidential or sensitive information, including, as applicable, IT System security measures. To the knowledge of the Company, each of the Company and the Company Subsidiaries is in compliance in all material respects with all of the Company Material Contracts to the extent relating to privacy and the collection and use of personal information, data protection and IT System security, except for such noncompliance which would not be reasonably expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, since two (2) years prior to the date of this Agreement, (i) to the knowledge of the Company, there have been no unauthorized disclosures of Trade Secrets or personal information or IT System security breaches or compromises and (ii) material Intellectual Property that the Company no claims have been asserted or one of its Subsidiaries is licensed or otherwise permitted by other persons to use, including, without limitation, all Intellectual Property exclusively licensed to threatened in writing against the Company or any of its Subsidiaries (the “ Company Exclusively Licensed Intellectual Property”). Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, alleging a Material Adverse Effect on the Company, (A) the Company or any of its Subsidiaries has the exclusive title to the Company Owned Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use in the business of the Company and its Subsidiaries taken as a whole, (D) the use violation of any Intellectual Property by the Company third party’s privacy or its Subsidiaries (x) does not, to the Knowledge of the Company, infringe on or otherwise violate the rights of any person in respect of any Intellectual Property and (y) is in accordance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property, (E) none of the Company or its Subsidiaries has received during the past three years preceding the date hereof any written notice of any threatened claim with respect to any Intellectual Property used or held for use in the business of the Company and its Subsidiaries (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F) to the Knowledge of the Company, no person is infringing on or otherwise violating any right of the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Property, (G) neither the Company nor any of its Subsidiaries has during the past three years preceding the date hereof asserted or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property andpersonal information rights.
Appears in 1 contract
Samples: Merger Agreement (UTi WORLDWIDE INC)
Intellectual Property; Information Technology. Section 3.15 (a) Schedule 3.14(a) contains a complete and accurate list, as of the Company Disclosure Schedule sets forth a true date hereof, of all issued Patents and complete list of (i) all Intellectual Property that is Patent applications owned by the Company or any of its Subsidiaries (Company Subsidiary, registrations and applications for Marks owned by the “ Company Owned Intellectual Property ”) that is registered or subject to an application any Company Subsidiary, and registrations and applications for registration Copyrights owned by the Company or that is otherwise any Company Subsidiary and, in each case, material to the business of the Company and its Subsidiaries taken as a whole whole. Except as disclosed on Schedule 3.14(a) or as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) the Company and its Subsidiaries own or possess valid rights to use all of the material Intellectual Property Assets used in their business, in the case of the Company Intellectual Property Assets, as the sole owner and free and clear of Liens (other than Permitted Liens);
(ii) material Intellectual Property that the Company or one of its Subsidiaries is licensed or otherwise permitted all issued Patents, registered Marks and registered Copyrights owned by other persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries and material to the business of the Company and its Subsidiaries are valid, subsisting, and enforceable, as applicable;
(iii) there are no pending or, to the “ Company Exclusively Licensed Intellectual Property”). Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Knowledge of the Company, (A) threatened claims against the Company or any of its Subsidiaries has alleging that the exclusive title conduct of the business of the Company and its Subsidiaries, infringes, misappropriates or otherwise violates the proprietary rights of other Persons (“Third Party Rights”);
(iv) the conduct of the business of the Company and its Subsidiaries does not infringe, misappropriate or otherwise violate any Third Party Rights; and
(v) to the Knowledge of the Company, there is currently no material infringement, misappropriation or violation by any person or entity of any of the Company Intellectual Property Assets.
(vi) The Company and its Subsidiaries have taken reasonable steps to maintain the confidentiality of all trade secrets and proprietary and confidential information of the Company and its Subsidiaries that are material to the business or operation of the Company and its Subsidiaries and the value of which to the Company Owned and its Subsidiaries is contingent upon maintaining the confidentiality thereof; and no such information has been disclosed other than to employees, representatives, agents, consultants of the Company and its Subsidiaries and third parties all of whom are bound by written confidentiality agreements. All current and former employees and any third party consultants who have participated in the conception or development of any material Company Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) Assets have executed written agreements with the Company or one of its Subsidiaries ownsthat assign to the Company or its Subsidiaries all rights to any Intellectual Property Assets arising during their employment with the Company or its Subsidiaries and (in the case of employees) relating to the business of the Company or its Subsidiaries.
(vii) No Person other than the Company and its Subsidiaries possesses any current or contingent rights to any source code that is part of any material Company Intellectual Property Assets. Neither the Company nor its Subsidiaries has disclosed or delivered any source code that is part of any material Company Intellectual Property Assets to any Person, other than to employees or is licensed consultants performing services for the Company or its Subsidiaries who are under a confidentiality obligation to the Company or its Subsidiaries, as applicable, with respect thereto.
(viii) The Company and its Subsidiaries has not distributed, incorporated or otherwise permitted used any free or open source software in a manner that grants any rights or immunities under any material Company Intellectual Property Assets to use any third party, including any requirement that any of the proprietary software owned by the Company or its Subsidiaries and included in or comprising a product or service of the Company or its Subsidiaries: (i) be made available or distributed in source code form; (ii) be licensed for the purpose of making derivative works; (iii) be licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind, except as required by applicable law; or (iv) be redistributable at no charge. The Company and its Subsidiaries are in compliance with the terms and conditions of all licenses for free or open source software that is contained in any material Company Intellectual Property Assets.
(b) The Business Systems are in good working condition to effectively perform all information technology operations necessary to conduct the business of the Company and its Subsidiaries, in each case, free except as would not reasonably be expected to be material to the Company and clear its Subsidiaries, taken as a whole. Except as set forth on Schedule 3.14(b), during the past twelve (12) months through the date hereof, to the Knowledge of all Encumbrances the Company, the Company and its Subsidiaries have not experienced any material disruption to, or material interruption in, the conduct of business attributable to a defect, bug, breakdown or other than Permitted Encumbrances) all Intellectual Property used failure or held deficiency of the Business Systems that are owned by or under the control of the Company or its Subsidiaries. The Company and its Subsidiaries have taken reasonable measures to provide for use in the back-up and recovery of the data and information necessary for the conduct of the Business Systems without material disruption to, or material interruption in, the conduct of the business of the Company and its Subsidiaries.
(c) The Company and its Subsidiaries have taken commercially reasonable security measures in accordance with common practices in the Company’s industry to prevent the unauthorized disclosure or use of Personal Information and confidential information, including trade secrets, in the Company’s possession or control. To the Knowledge of the Company, there have not been any actual or alleged incidents of data security breaches of the Business Systems involving unauthorized acquisition, destruction, damage, disclosure, loss, corruption, alteration, or use of any Personal Information, in each case, except as would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole, (D) the use of any Intellectual Property by the . The Company or and its Subsidiaries (x) does not, to and the Knowledge conduct of the Company, infringe on or otherwise violate the rights of any person their business are in respect of any Intellectual Property compliance and (y) is have been in accordance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property, (E) none of the Company or its Subsidiaries has received during compliance for the past three (3) years preceding the date hereof any written notice of any threatened claim with respect all Data Security Laws, except as would not reasonably be expected to any Intellectual Property used or held for use in the business of be material to the Company and its Subsidiaries Subsidiaries, taken as a whole. During the past three (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F3) to years through the Knowledge of the Companydate hereof, no person is infringing on Person (including any Governmental Body) has threatened in writing to commence or otherwise violating commenced any right of Proceeding against the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Propertyloss, (G) neither the Company nor any of its Subsidiaries has during the past three years preceding the date hereof asserted or threatened to assert any claims of infringement damage, unauthorized access, use, modification, or other violations misuse of its rights Personal Information on the Business Systems, in or each case, except as would not reasonably be expected to be material to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property andand its Subsidiaries taken as a whole.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Concentrix Corp)
Intellectual Property; Information Technology. (a) Section 3.15 3.14(a) of the Company Disclosure Schedule sets forth a true and complete list of (i) all Intellectual Property that is owned by the Company or any of its Subsidiaries (the “ “Company Owned Intellectual Property Property”) that is registered or subject to an application for registration or that is otherwise material to the business of the Company and its Subsidiaries taken as a whole and (ii) material Intellectual Property that the Company or one of its Subsidiaries is licensed or otherwise permitted by other persons Persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries (the “ “Company Exclusively Licensed Intellectual Property”). .
(b) Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (A) the Company or any of its Subsidiaries has the exclusive right, title and interest in, or to the Company Owned Intellectual Property that is registered (or subject should have been, pursuant to an application for registrationthis Section 3.14) set forth in Section 3.14 of the Company Disclosure Schedule, free and clear of all Encumbrances other than Permitted Encumbrances, Encumbrances (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, enforceable and (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use in the business of the Company and its Subsidiaries taken as a whole, (D) the . The use of any Intellectual Property by the Company or its Subsidiaries (x) does not, to the Knowledge of the Company, infringe on or otherwise violate the rights of any person Person in respect of any Intellectual Property and (y) is in accordance material compliance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property.
(c) Except as set forth in Section 3.14 of the Company Disclosure Schedule, (E1) none of the Company or its Subsidiaries has received during the past three (3) years preceding the date hereof any written notice of any threatened or pending claim with respect to any Intellectual Property used or held for use in the business of the Company and its Subsidiaries challenging the Company’s rights in such Intellectual Property or challenging the validity of the Company’s Intellectual Property (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F2) to the Knowledge of the Company, no person Person is infringing on or otherwise violating any right of the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Property, except to the extent such infringement or violation has not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company and (G3) neither the Company nor any of its Subsidiaries has during the past three (3) years preceding the date hereof asserted or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property.
(d) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, no Company Owned Intellectual Property andis being used or enforced in a manner that could reasonably be expected to result in the abandonment, cancellation or unenforceability of such Company Owned Intellectual Property and the Company and its Subsidiaries have timely made all filings and payments with the appropriate foreign and domestic agencies required to maintain in subsistence all Company Owned Intellectual Property that is registered or subject to an application for registration.
(e) Each of the Company and its Subsidiaries has taken actions reasonably necessary to maintain the secrecy of all Trade Secrets which constitute Company Owned Intellectual Property and all use by or disclosure to any Person of such Trade Secrets has been pursuant to the terms of a valid, written confidentiality agreement with such Person that is legally enforceable by Parent. For purposes of this Agreement, “Trade Secrets” means all nonpublic information, processes, product specifications, formulae, trade secrets, inventions, know-how, customer lists, supplier lists, methods, algorithms, personal data, financial data, databases and other confidential information and rights in any jurisdiction, foreign or domestic, to limit the use or disclosure thereof by any Person.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
Intellectual Property; Information Technology. (a) Section 3.15 3.14(a) of the Company Disclosure Schedule sets forth a true an accurate and complete list of all (i) all registered or registerable Intellectual Property and pending applications with respect thereto that are owned by any Group Company as of the date of this Agreement and (ii) Intellectual Property that is owned by the Company or any of its Subsidiaries (the “ Company Owned Intellectual Property ”) that is registered or subject are exclusively licensed to an application for registration or that is otherwise and are material to the respective business of the Company and its Subsidiaries taken Subsidiaries, as a whole conducted as of the date hereof, indicating for each such item the registration number or publication number, as applicable, and (ii) material the jurisdiction in which such Intellectual Property that the has been issued or is registered.
(b) The Company or one of and its Subsidiaries is licensed own or otherwise permitted by possess adequate licenses or other persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries (the “ Company Exclusively Licensed Intellectual Property”). Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (A) the Company or any of its Subsidiaries has the exclusive title to the Company Owned Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted enforceable rights to use (in each case, free and clear of all Encumbrances other than any Liens, except for Permitted Encumbrances) ), all Intellectual Property used in, or held for use in necessary to conduct, the business of the Company and or its Subsidiaries taken as a whole, currently conducted and as currently proposed to be conducted.
(Dc) the The use of any Intellectual Property in connection with the operation of their respective businesses or otherwise by the Company or its Subsidiaries (x) does notnot infringe upon, to the Knowledge of the Companymisappropriate, infringe on or otherwise violate and has not infringed upon, misappropriated or otherwise violated the Intellectual Property rights of any person in respect of any Intellectual Property and (y) is in accordance with any applicable agreement license pursuant to which the Company or any of its Subsidiaries possesses acquired the right to use any such Intellectual Property. Neither the Company nor any of its Subsidiaries has received any written notice of, (E) none and to the knowledge of the Company, there is no threatened, assertion or claim that it, or the business or activities of the Company or any of its Subsidiaries (including the commercialization and exploitation of their products and services), is infringing upon, diluting, misappropriating, or otherwise violating or has received during the past three years preceding the date hereof any written notice of any threatened claim with respect to infringed upon, diluted, misappropriated, or otherwise violated any Intellectual Property used right of any person, including any demands or held unsolicited offers to license any Intellectual Property nor are there any facts or circumstances that would form the basis for use in any claim against the Company or any of its Subsidiaries of infringement, unauthorized use, or violation of any Intellectual Property right of any person, or challenging the ownership, use, validity or enforceability of any Intellectual Property owned by any Group Company. Neither the Company nor any of its Subsidiaries nor the business or activities of the Company and or any of its Subsidiaries (includingincluding the commercialization and exploitation of their products and services) infringes, but not limited todilutes or misappropriates or has infringed, diluted or misappropriated any cancellation, opposition or other action before an intellectual property registry), (F) to Intellectual Property rights of any person. To the Knowledge knowledge of the Company, no person (including current and former officers, employees, consultants and contractors of any Group Company) is currently infringing, diluting or misappropriating Intellectual Property owned by the Company or any of its Subsidiaries.
(d) With respect to each Intellectual Property owned by any Group Company, (i) such Group Company is the owner of the entire right, title and interest in and to such Intellectual Property, and is entitled to use, transfer and license such Intellectual Property in the continued operation of its respective business without payment to any Third Party (other than to one or more Governmental Authorities or other similar parties for the purposes of registering and maintaining such rights), (ii) no Group Company is obligated to assign ownership of any such Intellectual Property to any Third Party and (iii) no Group Company is bound by or subject to any non-compete or other restrictions on the operation and scope of its respective business. None of the Intellectual Property owned by any Group Company has been revoked, invalidated or otherwise challenged in whole or in part.
(e) With respect to each item of Intellectual Property licensed to any Group Company, (i) such Group Company has the right to use such Intellectual Property in the continued operation of its respective business in accordance with the terms of the license agreement governing such Intellectual Property, and (ii) no party to any license of such Intellectual Property is in breach thereof or default thereunder.
(f) No person is challenging in writing the validity, enforceable, use or ownership of or, to the knowledge of the Company, threatening to challenge, or infringing on upon, misappropriating, or otherwise violating any right of the Company or any of its Subsidiaries with respect to any Intellectual Property owned by or licensed to the Company or its Subsidiaries.
(g) No Intellectual Property licensed or owned by the Company or its Subsidiaries is being used or enforced in a manner that would result in the abandonment, cancellation or unenforceability of such Intellectual Property.
(h) Each of the Company and its Subsidiaries owns all right, title and interest in and to all Intellectual Property created or developed by, for or under the direction or supervision of the Company or such Subsidiary, and all current or former officers, employees, consultants or contractors who have participated in the creation or development of any such Intellectual Property have executed and delivered to the Company or such Subsidiary a valid and enforceable agreement (i) providing for the non-disclosure by such person of confidential information and (ii) providing for the present assignment by such person to the Company or such Subsidiary of any Intellectual Property developed or arising out of such person’s employment by, engagement by or contract with the Company or such Subsidiary of the Company and, to the knowledge of the Company, no such officer, employee, consultant or contractor is in material violation of any term of any such agreement.
(i) There are no outstanding Orders issued against any Intellectual Property owned by any Group Company that restricts or limits the use or licensing thereof by any Group Company.
(A) A Group Company owns or has a valid right or license to use or otherwise exploit all Software used in connection with the businesses of the Group Companies as currently conducted, and (B) a Group Company possesses the source code, object code and documentation for all such Software that is proprietary to and owned by any Group Company (the “Company Owned Software”), (C) no Third Party has any ownership right or interest in any Company Owned Software, (D) the Group Companies have not disclosed the source code for any Company Owned Software to any Third Party, and (E) no such Software is subject to any obligation (including the terms of any open source license) that would require any Group Company to (i) disclose to any person any source code or Trade Secret that is part of any Company Owned Software, (ii) not charge fees or other consideration for such Software, or (iii) grant any right to any person to decompile or otherwise reverse-engineer such Software.
(k) The consummation of the Transactions will not result in the loss or impairment or the restriction on use or other exploitation of any Intellectual Property owned by or licensed to any Group Company.
(l) The Company Exclusively Licensed and its Subsidiaries have taken all actions reasonably necessary to (i) maintain and protect each material item of Intellectual Property that they own or are licensed or otherwise authorized to use, and (ii) protect the confidentiality and value of trade secrets and other know-how or confidential or proprietary information (together, the “Trade Secrets”) that are owned by any Group Company or provided to any Group Company by any Third Party under conditions of confidentiality, including having and effectively implementing in the business operations of the Company and its Subsidiaries Intellectual Property, (G) neither information security and privacy measures comparable with those implemented by similarly situated companies in the U.S. and the PRC operating in the industry of the Company nor and its Subsidiaries. To the knowledge of the Company, (A) there has been no unauthorized disclosure or use of any Third Party’s Trade Secrets by any officer, employee, contractor, or consultant of any Group Company, and none of the Company’s or its Subsidiaries’ Trade Secrets have been disclosed to any Third Party except pursuant to valid and appropriate written non-disclosure agreements or license agreements or pursuant to obligations to maintain confidentiality arising by operation of Law, and (B) there has been no material breach of any Group Company’s security measures wherein any Trade Secrets have been disclosed or may have reasonably been disclosed without authorization to any Third Party. Immediately subsequent to the Effective Time, all Intellectual Property owned or used by any Group Company shall be owned by or available for use by the Company and its Subsidiaries on terms and conditions identical to those under which the Company and its Subsidiaries owned or used such Intellectual Property immediately prior to the Effective Time.
(m) The Company IT Assets are (A) adequate and sufficient for, and operate and perform in accordance with their documentation and functional specifications and otherwise as required in connection with, the operation of the Company’s and its Subsidiaries’ businesses and the protection of Trade Secrets by the Group Companies, and (B) to the knowledge of the Company, are free from any material defects, viruses, worms and other malware. The Company and its Subsidiaries have implemented reasonable backup, security and disaster recovery measures and technology consistent with industry practices and the Company IT Assets have not failed in any material respect, and to the knowledge of the Company, (i) no person has gained unauthorized access to any material Company IT Assets, and (ii) the data that they process and/or produce with respect to the businesses of the Company and its Subsidiaries has not been corrupted or compromised in any material respect.
(n) None of the Intellectual Property owned by any Group Company is subject to any Contract or other obligation as a result of any funding or support from, or any arrangement with, any Governmental Authority or agency or nonprofit organization.
(o) No Group Company is a party to or bound by any Contract that grants or purports to grant a license, covenant not to sxx or other right under any Intellectual Property of Parent of any of its Subsidiaries Affiliates (other than the Group Companies).
(p) Each Group Company has during information technology systems sufficient in all material respects to operate the past three years preceding business of such Group Company as it is currently conducted and as contemplated to be conducted. Each Group Company has taken reasonable steps and implemented reasonable procedures to ensure that information technology systems used in connection with the date hereof asserted operation of such Group Company, and data stored or threatened transmitted on such systems, are and have been secure and, to assert the knowledge of the Company, such systems are free from any claims of infringement disabling codes or instructions and any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other violations of its rights in software routines or hardware components that are designed to the Company Owned Intellectual Property permit unauthorized access or the unauthorized disablement or erasure of such Company Exclusively Licensed Intellectual Property andProduct (or all parts thereof) or data or other software of users. There have been no unauthorized intrusions or breaches of the security of the information technology systems used in connection with the operation of the Group Companies.
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Intellectual Property; Information Technology. Section 3.15 of the Company Disclosure Schedule sets forth a true and complete list of (i) all Intellectual Property that is owned by the Company or any of its Subsidiaries (the “ “Company Owned Intellectual Property Property”) that is registered or subject to an application for registration or that is otherwise material to the business of the Company and its Subsidiaries taken as a whole and (ii) material Intellectual Property that the Company or one of its Subsidiaries is licensed or otherwise permitted by other persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries (the “ “Company Exclusively Licensed Intellectual Property”). Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (A) the Company or any of its Subsidiaries has the exclusive title to the Company Owned Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use in the business of the Company and its Subsidiaries taken as a whole, (D) the use of any Intellectual Property by the Company or its Subsidiaries (x) does not, to the Knowledge of the Company, infringe on or otherwise violate the rights of any person in respect of any Intellectual Property and (y) is in accordance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property, (E) none of the Company or its Subsidiaries has received during the past three years preceding the date hereof any written notice of any threatened claim with respect to any Intellectual Property used or held for use in the business of the Company and its Subsidiaries (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F) to the Knowledge of the Company, no person is infringing on or otherwise violating any right of the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Property, (G) neither the Company nor any of its Subsidiaries has during the past three years preceding the date hereof asserted or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property andand (H) to the Knowledge of the Company, no Company Owned Intellectual Property is being used or enforced in a manner that could reasonably be expected to result in the abandonment, cancellation or unenforceability of such Company Owned Intellectual Property. The Company and its Subsidiaries have timely made all filings and payments with the appropriate foreign and domestic agencies required to maintain in subsistence all Company Owned Intellectual Property that is registered or subject to an application for registration. Each of the Company and its Subsidiaries has taken actions reasonably necessary to maintain the secrecy of all trade secrets which constitute Company Owned Intellectual Property to the extent used or held for use in the business of the Company and its Subsidiaries. Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, to the Knowledge of the Company, each of the Company and its Subsidiaries is in compliance with all applicable Laws pertaining to information privacy and security. For purposes of this Agreement, “Intellectual Property” means all trademarks, service marks, trade names, brand names, Internet domain names, logos, certification marks, trade dress and other indications of origin, the goodwill associated with the foregoing and registrations or applications for registration in any jurisdiction, foreign or domestic, of the foregoing and any extensions, modifications or renewals thereof; designs, industrial models, all patents, applications for patents (including divisions, continuations, continuations in part and renewal applications), and any renewals, extensions or reissues thereof, in any jurisdiction, foreign or domestic; all nonpublic information, processes, product specifications, formulae, trade secrets, inventions, know-how, databases and other confidential information (collectively, “Trade Secrets”) and rights in any jurisdiction, foreign or domestic, to limit the use or disclosure thereof by any person; all writings and other published or unpublished works of authorship, whether copyrightable or not (including computer software, source code and object code versions thereof and all related documentation), in any jurisdiction, foreign or domestic; all copyrights, any registrations or applications for registration thereof in any jurisdiction, foreign or domestic, and any extensions, modifications or renewals thereof; and all similar intellectual property or proprietary rights. vTable of Contents
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Intellectual Property; Information Technology. Section 3.15 5.15 of the Company Disclosure Schedule sets forth a true complete and complete correct list of all registrations and applications for the registration or issuance of any Intellectual Property owned by the Company or any of its Subsidiaries. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) the Intellectual Property identified in Section 5.15 of the Company Disclosure Schedule is valid and enforceable; (ii) the Company and each of its Subsidiaries owns, or is licensed or otherwise has the right to use in the manner in which use is made (in each case, free and clear of any Liens, and of any licenses or license restrictions that are inconsistent with the use that is made by the Company or its Subsidiaries), all Intellectual Property and Information Technology used in or necessary for the conduct of its business as currently conducted (including Intellectual Property and Information Technology embodied in the products of the Company or any Subsidiary) and shall continue to own, license or otherwise have rights to such Intellectual Property and Information Technology immediately following the Closing; (iii) neither the Company nor its Subsidiaries has infringed, misappropriated or otherwise violated the Intellectual Property rights of any Person; (iv) to the Knowledge of the Company, no Person has challenged, infringed, misappropriated or otherwise violated any Intellectual Property right owned by the Company or its Subsidiaries, or claimed to be the owner of Intellectual Property or Information Technology purported to be owned by a Company or a Subsidiary; (v) neither the Company nor any of its Subsidiaries has received any written notice, written invitation to license, or otherwise has Knowledge of any pending or threatened claim, action, suit, order or proceeding against the Company or any of its Subsidiaries with respect to any Intellectual Property or Information Technology used by the Company or any of its Subsidiaries, including any written allegation that is the any services provided, processes used or products or software manufactured, used, imported, offered for sale, sold or licensed by the Company or any of its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property rights of any Person; (vi) the consummation of the transactions contemplated by this Agreement will not alter, encumber, impair or extinguish any Intellectual Property right owned by the Company or any of its Subsidiaries or any of the Company’s or its Subsidiaries’ rights to Intellectual Property rights granted to them, or impair the right of the Company or its Subsidiaries to develop, use, sell, license or dispose of any Information Technology embodied or incorporated into the products or services of the Company or a Subsidiary, or the right of the Company or any of its Subsidiaries to bring any action for the infringement of, any Intellectual Property owned by the Company or any of its Subsidiaries; (vii) the Company and its Subsidiaries have taken reasonable steps to establish and perfect ownership of Intellectual Property and Information Technology created by their employees and contractors, and to maintain the confidentiality of all Trade Secrets owned, used or held for use by the Company or any of its Subsidiaries, and no Trade Secrets owned by the Company have been disclosed to third parties other than third parties who are subject to a written agreement, employment policy, or other legal obligation not to improperly disclose or use such Trade Secrets, and not to violate any written agreements restricting the Company’s or its Subsidiaries use or disclosure of Trade Secrets owned by another Person; (viii) the Company and all Subsidiaries have maintained all personally identifiable information in their possession, custody or control in material compliance with all Applicable Laws, and there has been no improper disclosure or use of any such personally identifiable information; (ix) all Information Technology used in the ordinary course of business by the Company or any Subsidiary as an end user operate and perform in a manner that permits the Company and its Subsidiaries to conduct their respective businesses as currently conducted; (x) to the Knowledge of the Company, no Person has gained unauthorized access to or use of any Information Technology used by the Company or any Subsidiary either as an end user or as embodied or incorporated into products and services; (xi) the Information Technology embodied or incorporated into the products and services of the Company or any Subsidiary does not contain ‘open source’ code, content or technology that would require, as a condition to the Company’s or any Subsidiary’s right to redistribute such code, content or technology, the Company or any Subsidiary to disclose or permit the use of the source code to any Information Technology owned by the Company or any of its Subsidiaries (the “ Company Owned Intellectual Property ”) that is registered or subject to an application except for registration or that is otherwise material bug fixes and modifications to the business of the Company original ‘open source’ code, content, and its Subsidiaries taken as a whole and (ii) material Intellectual Property that the Company or one of its Subsidiaries is licensed or otherwise permitted technology made by other persons to use, including, without limitation, all Intellectual Property exclusively licensed to the Company or any of its Subsidiaries Subsidiaries); and (the “ Company Exclusively Licensed Intellectual Property”). Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, (Axii) the Company or any of its Subsidiaries has the exclusive title to the Company Owned Intellectual Property that is registered or subject to an application for registration, free and clear of all Encumbrances other than Permitted Encumbrances, (B) all Company Owned Intellectual Property that is registered or subject to an application for registration is subsisting, valid and enforceable, (C) the Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to use (in each case, free and clear of all Encumbrances other than Permitted Encumbrances) all Intellectual Property used or held for use in the business of the Company and its Subsidiaries have taken as reasonable steps to implement a whole, (D) reasonable backup and disaster recovery plan for all Information Technology reasonably necessary to maintain and restore all information technology functions and systems necessary to restore and maintain the use of any Intellectual Property by the Company or its Subsidiaries (x) does not, to the Knowledge of the Company, infringe on or otherwise violate the rights of any person in respect of any Intellectual Property and (y) is in accordance with any applicable agreement pursuant to which the Company or any of its Subsidiaries possesses the right to use any Intellectual Property, (E) none of the Company or its Subsidiaries has received during the past three years preceding the date hereof any written notice of any threatened claim with respect to any Intellectual Property used or held for use in the business operations of the Company and its Subsidiaries (including, but not limited to, any cancellation, opposition or other action before an intellectual property registry), (F) to the Knowledge of the Company, no person is infringing on or otherwise violating any right of the Company or its Subsidiaries with respect to any Company Owned Intellectual Property or any Company Exclusively Licensed Intellectual Property, (G) neither the Company nor any of its Subsidiaries has during the past three years preceding the date hereof asserted or threatened to assert any claims of infringement or other violations of its rights in or to the Company Owned Intellectual Property or the Company Exclusively Licensed Intellectual Property andall Subsidiaries.
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