Intellectual Property; Information Technology. (a) Schedule 3.16(a) contains a list of the following as of the date hereof: (i) all registrations and applications for registrations of Business Copyrights, Business Patents and Business Trademarks (including domain names); and (ii) all Software applications (including modelling and analytical tools) that are material to the conduct of the Businesses as currently conducted and that are owned by any Transferred Entity or any Asset Seller and (in the case of the Asset Sellers) that are included in the Transferred Assets. (b) Except as would not reasonably be expected to be material to the Businesses taken as a whole, an Asset Seller or Transferred Entity is the sole and exclusive owner of all right, title, and interest in and to the Business Intellectual Property Rights, free and clear of all Liens other than Permitted Liens. Except as would not reasonably be expected to be material to the Businesses taken as a whole, and except for (i) assets and Intellectual Property Rights used to provide the services to Buyer and its Affiliates under the Transition Services Agreement, (ii) assets and Intellectual Property Rights that would be used to provide to Buyer and its Affiliates the services that are excluded from the Transition Services Agreement and (iii) and the rights granted pursuant to the Intellectual Property License Agreement, an Asset Seller or Transferred Entity is the sole and exclusive owner of all right, title, and interest in and to, or is licensed or otherwise possesses rights to use, all Intellectual Property Rights necessary for conduct of the Businesses as currently conducted. Except as would not reasonably be expected to be material to the Businesses taken as a whole, the Registered Business Intellectual Property Rights are subsisting and the Registered Business Intellectual Property Rights that have been issued or registered are, to the knowledge of Sellers, valid and enforceable. (c) There are no pending or, to the knowledge of Sellers, threatened claims against any Seller or Transferred Entity by any Person alleging infringement, misappropriation or other violation by a Seller or Transferred Entity for their conduct of the Businesses or use of the Business Intellectual Property Rights, and the Sellers and Transferred Entities have not received written notice of any such claim in the past three (3) years, nor has any Seller or Transferred Entity received a written invitation or request in the past three (3) years that it consider obtaining a license under any Patent rights of a third party for use in the Businesses, in each case, that would reasonably be expected to be material to the Businesses taken as a whole. (d) Except as would not reasonably be expected to be material to the Businesses, taken as a whole, the Sellers have taken reasonable steps to maintain the confidentiality of the trade secrets included in the Business Intellectual Property Rights. (e) Except as would not reasonably be expected to be material to the Businesses taken as a whole, none of the Sellers or Transferred Entities, the products or services distributed, sold or offered by the Businesses, nor the conduct of the Businesses, has, in the past three (3) years infringed, misappropriated or otherwise violated, or as of the date hereof infringes, misappropriates or otherwise violates, any Intellectual Property Right of any third party. In the past three (3) years, no Seller or Transferred Entity has made any written, or to the knowledge of the Sellers, non-written, claim of infringement, misappropriation or other violation by any Person of any Business Intellectual Property Rights. (f) Except as would not reasonably be expected to be material to the Businesses taken as a whole, (i) all past and present employees, contractors and consultants of the Sellers or Transferred Entities who have had access to trade secrets included in the Business Intellectual Property Rights or other confidential information Related to the Businesses or have participated in the development of Business Intellectual Property Rights or other confidential information Related to the Businesses for the Sellers or Transferred Entity are bound by written agreements pursuant to which such Persons (A) assign to a Seller or Transferred Entity or its applicable Subsidiary or Joint Venture all of such Person’s right, title and interest in and to all Intellectual Property Rights developed by such Person within the scope of such Person’s employment or engagement with or by a Seller or Transferred Entity and (B) are obligated to safeguard and protect such trade secrets included in the Business Intellectual Property Rights and other confidential information (including with respect to the disclosure and use thereof), and, (ii) to the knowledge of Sellers, no such Person has breached any of its obligations with respect to such Business Intellectual Property Rights or other confidential information. To the knowledge of Sellers, no third party has infringed, misappropriated or otherwise violated any Business Intellectual Property Rights, or has breached any confidentiality obligations with respect to any trade secret included in the Business Intellectual Property Rights, in each case that would reasonably be expected to be material to the Businesses taken as a whole. (g) There are no pending or, to the knowledge of Sellers, threatened claims against Sellers or Transferred Entities by any Person challenging the ownership, enforceability or validity of any Business Intellectual Property Rights that would reasonably be expected to be material to the Businesses taken as a whole. (h) Except as would not reasonably be expected to be material to the Businesses, taken as a whole, no Seller or Transferred Entity, with respect to the Businesses, uses or distributes, or has used or distributed, any Software licensed, provided, or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) in any manner that would require any source code of any Software identified in Schedule 3.16(a) to be disclosed publicly or to a licensee, licensed for free, or dedicated to the public. (i) Except as disclosed in Schedule 3.16(i) or as would not reasonably be expected to be material to the Businesses taken as a whole, neither Sellers nor any of their Affiliates have (i) disclosed or delivered, or have any obligation (with or without the passage of time or giving of notice) to disclose or deliver, to any third party, (ii) permitted the disclosure or delivery, or has any obligation (with or without the passage of time or giving of notice) to permit the disclosure or delivery, to any escrow agent or other third party of, or (iii) licensed or otherwise made available, or has any obligation (with or without the passage of time or giving of notice) to license or otherwise make available, any source code of the Software identified in Schedule 3.16(a) (other than, (A) in the case of each of (i) through (iii), in the ordinary course of business to employees and independent contractors who are subject to written confidentiality obligations, and (B) in the case of (ii) to any escrow agent who did not release such source code to any third party and who no longer retains a copy of such source code).
Appears in 2 contracts
Samples: Security and Asset Purchase Agreement (Willis Towers Watson PLC), Security and Asset Purchase Agreement (Arthur J. Gallagher & Co.)
Intellectual Property; Information Technology. (a) Schedule 3.16(a) contains a list of the following as of the date hereof: (i) all registrations and applications for registrations of Business Copyrights, Business Patents and Business Trademarks (including domain names); and (ii) all Software applications (including modelling and analytical tools) that are material to the conduct of the Businesses as currently conducted and that are owned by any Transferred Entity or any Asset Seller and (in the case of the Asset Sellers) that are included in the Transferred Assets.
(b) Except as does not and would not reasonably be expected to be material have, individually or in the aggregate, a Comet Material Adverse Effect, Comet and its Subsidiaries own or possess adequate licenses or other valid rights to the Businesses taken as a wholeuse all patents, an Asset Seller or Transferred Entity is the sole patent applications, patent rights, know-how, trade secrets, trademarks, trademark rights, trade names, trade dress, trade name rights, service marks, service xxxx rights, copyrights, software, domain names, computer programs, technical know-how and exclusive owner of all rightother proprietary intellectual property rights (collectively, title, and interest in and to the Business “Intellectual Property Rights”) necessary for the conduct of their respective businesses as currently being conducted. There are no assertions or claims challenging the validity of any Intellectual Property Rights of Comet or any of its Subsidiaries that are reasonably expected to have, free individually or in the aggregate, a Comet Material Adverse Effect. The conduct of Comet’s and clear its Subsidiaries’ respective businesses as currently conducted does not conflict with, violate, or infringe any Intellectual Property Rights of all Liens other than Permitted Liens. Except as a third party, except for any such claims that, individually or in the aggregate, do not and would not reasonably be expected to be material to the Businesses taken as have a whole, and except for (i) assets and Intellectual Property Rights used to provide the services to Buyer and its Affiliates under the Transition Services Agreement, (ii) assets and Intellectual Property Rights that would be used to provide to Buyer and its Affiliates the services that Comet Material Adverse Effect. No claims are excluded from the Transition Services Agreement and (iii) and the rights granted pursuant to the Intellectual Property License Agreement, an Asset Seller or Transferred Entity is the sole and exclusive owner of all right, title, and interest in and to, or is licensed or otherwise possesses rights to use, all Intellectual Property Rights necessary for conduct of the Businesses as currently conducted. Except as would not reasonably be expected to be material to the Businesses taken as a whole, the Registered Business Intellectual Property Rights are subsisting and the Registered Business Intellectual Property Rights that have been issued or registered are, to the knowledge of Sellers, valid and enforceable.
(c) There are no pending or, to the knowledge of SellersComet, threatened claims against that Comet or any Seller of its Subsidiaries are infringing or Transferred Entity by otherwise adversely affecting the rights of any Person alleging infringement, misappropriation or other violation by a Seller or Transferred Entity for their conduct of the Businesses or use of the Business with regard to any Intellectual Property Rights, and the Sellers and Transferred Entities have not received written notice of except for any such claim claims that, individually or in the past three (3) yearsaggregate, nor has any Seller or Transferred Entity received a written invitation or request in the past three (3) years that it consider obtaining a license under any Patent rights of a third party for use in the Businesses, in each case, that would reasonably be expected to be material to the Businesses taken as a whole.
(d) Except as do not and would not reasonably be expected to be material to have a Comet Material Adverse Effect. To the Businessesknowledge of Comet, taken as a wholeno Person is infringing, the Sellers have taken reasonable steps to maintain the confidentiality misappropriating or otherwise violating any of the trade secrets included in the Business Intellectual Property Rights.
(e) Except Rights owned by or licensed by or to Comet or any of its Subsidiaries except as do not and would not reasonably be expected to be material have, individually or in the aggregate, a Comet Material Adverse Effect. No Proceeding is pending or has been threatened by Comet or any of its Subsidiaries against any Person with regard to the Businesses taken as a wholeownership, none use, infringement, misappropriation, violation, validity or enforceability of the Sellers or Transferred Entities, the products or services distributed, sold or offered by the Businesses, nor the conduct of the Businesses, has, in the past three (3) years infringed, misappropriated or otherwise violated, or as of the date hereof infringes, misappropriates or otherwise violates, any Intellectual Property Right of any third party. In the past three (3) yearsRights, no Seller or Transferred Entity has made any written, or to the knowledge of the Sellers, non-written, claim of infringement, misappropriation or other violation by any Person of any Business Intellectual Property Rights.
(f) Except except as do not and would not reasonably be expected to be have, individually or in the aggregate, a Comet Material Adverse Effect.
(b) Since January 1, 2015, there has been no failure, material to the Businesses taken as a wholesubstandard performance, (i) all past and present employees, contractors and consultants breach of the Sellers or Transferred Entities who have had unauthorized access to trade secrets included in the Business Intellectual Property Rights any IT Systems of Comet or other confidential information Related to the Businesses or have participated in the development of Business Intellectual Property Rights or other confidential information Related to the Businesses for the Sellers or Transferred Entity are bound by written agreements pursuant to which such Persons (A) assign to a Seller or Transferred Entity or its applicable Subsidiary or Joint Venture all of such Person’s right, title and interest in and to all Intellectual Property Rights developed by such Person within the scope of such Person’s employment or engagement with or by a Seller or Transferred Entity and (B) are obligated to safeguard and protect such trade secrets included in the Business Intellectual Property Rights and other confidential information (including with respect to the disclosure and use thereof), and, (ii) to the knowledge of Sellers, no such Person has breached any of its obligations with respect to such Business Intellectual Property Rights or other confidential information. To the knowledge of Sellers, no third party Subsidiaries that has infringed, misappropriated or otherwise violated caused any Business Intellectual Property Rights, or has breached any confidentiality obligations with respect to any trade secret included in the Business Intellectual Property Rights, in each case that would reasonably be expected to be material disruption to the Businesses taken as a whole.
(g) There are no pending business of Comet or any of its Subsidiaries or, to the knowledge of SellersComet, threatened claims against Sellers resulted in any unauthorized disclosure of or Transferred Entities access to any data owned, collected or controlled by Comet or any Person challenging the ownershipof its Subsidiaries, enforceability or validity of any Business Intellectual Property Rights that would reasonably be expected to be material to the Businesses taken in each case except as a whole.
(h) Except as do not and would not reasonably be expected to be material have, individually or in the aggregate, a Comet Material Adverse Effect. Comet and its Subsidiaries have taken commercially reasonable measures to protect the Businessesintegrity and security of their respective information technology systems and the data stored thereon from unauthorized use, taken as a wholeaccess or modification by third Persons. For purposes of this Agreement, no Seller or Transferred Entity, with respect to the Businesses, uses or distributes, or has used or distributed, any Software licensed, provided, or distributed under any open source license“IT Systems” means (a) all computing and/or communications systems and equipment, including any license meeting internet, intranet, extranet, e-mail or voice mail systems; (b) all computer software, the Open Source Definition tangible media on which it is recorded (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) in any manner that would require any source code of any Software identified in Schedule 3.16(aform) to be disclosed publicly or to a licenseeand all supporting documentation, licensed for free, or dedicated data and databases; and (c) all peripheral equipment related to the publicforegoing, including printers, scanners, switches, routers, network equipment and removable media.
(i) Except as disclosed in Schedule 3.16(i) or as would not reasonably be expected to be material to the Businesses taken as a whole, neither Sellers nor any of their Affiliates have (i) disclosed or delivered, or have any obligation (with or without the passage of time or giving of notice) to disclose or deliver, to any third party, (ii) permitted the disclosure or delivery, or has any obligation (with or without the passage of time or giving of notice) to permit the disclosure or delivery, to any escrow agent or other third party of, or (iii) licensed or otherwise made available, or has any obligation (with or without the passage of time or giving of notice) to license or otherwise make available, any source code of the Software identified in Schedule 3.16(a) (other than, (A) in the case of each of (i) through (iii), in the ordinary course of business to employees and independent contractors who are subject to written confidentiality obligations, and (B) in the case of (ii) to any escrow agent who did not release such source code to any third party and who no longer retains a copy of such source code).
Appears in 2 contracts
Samples: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Intellectual Property; Information Technology. (a) Schedule 3.16(a) contains a list of the following as of the date hereof: (i) all registrations and applications for registrations of Business Copyrights, Business Patents and Business Trademarks (including domain names); and (ii) all Software applications (including modelling and analytical tools) that are material to the conduct of the Businesses as currently conducted and that are owned by any Transferred Entity or any Asset Seller and (in the case of the Asset Sellers) that are included in the Transferred Assets.
(b) Except as does not and would not reasonably be expected to be material have, individually or in the aggregate, a Moon Material Adverse Effect, Moon and its Subsidiaries own or possess adequate licenses or other valid rights to the Businesses taken as a whole, an Asset Seller or Transferred Entity is the sole and exclusive owner of use all right, title, and interest in and to the Business Intellectual Property RightsRights necessary for the conduct of their respective businesses as currently being conducted. There are no assertions or claims challenging the validity of any Intellectual Property Rights of Moon or any of its Subsidiaries that are reasonably expected to have, free individually or in the aggregate, a Moon Material Adverse Effect. The conduct of Moon’s and clear its Subsidiaries’ respective businesses as currently conducted does not conflict with, violate, or infringe any Intellectual Property Rights of all Liens other than Permitted Liens. Except as a third party, except for any such claims that, individually or in the aggregate, do not and would not reasonably be expected to be material to the Businesses taken as have a whole, and except for (i) assets and Intellectual Property Rights used to provide the services to Buyer and its Affiliates under the Transition Services Agreement, (ii) assets and Intellectual Property Rights that would be used to provide to Buyer and its Affiliates the services that Moon Material Adverse Effect. No claims are excluded from the Transition Services Agreement and (iii) and the rights granted pursuant to the Intellectual Property License Agreement, an Asset Seller or Transferred Entity is the sole and exclusive owner of all right, title, and interest in and to, or is licensed or otherwise possesses rights to use, all Intellectual Property Rights necessary for conduct of the Businesses as currently conducted. Except as would not reasonably be expected to be material to the Businesses taken as a whole, the Registered Business Intellectual Property Rights are subsisting and the Registered Business Intellectual Property Rights that have been issued or registered are, to the knowledge of Sellers, valid and enforceable.
(c) There are no pending or, to the knowledge of SellersMoon, threatened claims against that Moon or any Seller of its Subsidiaries are infringing or Transferred Entity by otherwise adversely affecting the rights of any Person alleging infringement, misappropriation or other violation by a Seller or Transferred Entity for their conduct of the Businesses or use of the Business with regard to any Intellectual Property Rights, and the Sellers and Transferred Entities have not received written notice of except for any such claim claims that, individually or in the past three (3) yearsaggregate, nor has any Seller or Transferred Entity received a written invitation or request in the past three (3) years that it consider obtaining a license under any Patent rights of a third party for use in the Businesses, in each case, that would reasonably be expected to be material to the Businesses taken as a whole.
(d) Except as do not and would not reasonably be expected to be material to have a Moon Material Adverse Effect. To the Businessesknowledge of Moon, taken as a wholeno Person is infringing, the Sellers have taken reasonable steps to maintain the confidentiality misappropriating or otherwise violating any of the trade secrets included in the Business Intellectual Property Rights.
(e) Except Rights owned by or licensed by or to Moon or any of its Subsidiaries except as do not and would not reasonably be expected to be material have, individually or in the aggregate, a Moon Material Adverse Effect. No Proceeding is pending or has been threatened by Moon or any of its Subsidiaries against any Person with regard to the Businesses taken as a wholeownership, none use, infringement, misappropriation, violation, validity or enforceability of the Sellers or Transferred Entities, the products or services distributed, sold or offered by the Businesses, nor the conduct of the Businesses, has, in the past three (3) years infringed, misappropriated or otherwise violated, or as of the date hereof infringes, misappropriates or otherwise violates, any Intellectual Property Right of any third party. In the past three (3) yearsRights, no Seller or Transferred Entity has made any written, or to the knowledge of the Sellers, non-written, claim of infringement, misappropriation or other violation by any Person of any Business Intellectual Property Rights.
(f) Except except as do not and would not reasonably be expected to be have, individually or in the aggregate, a Moon Material Adverse Effect.
(b) Since January 1, 2015, there has been no failure, material to the Businesses taken as a wholesubstandard performance, (i) all past and present employees, contractors and consultants breach of the Sellers or Transferred Entities who have had unauthorized access to trade secrets included in the Business Intellectual Property Rights any IT Systems of Moon or other confidential information Related to the Businesses or have participated in the development of Business Intellectual Property Rights or other confidential information Related to the Businesses for the Sellers or Transferred Entity are bound by written agreements pursuant to which such Persons (A) assign to a Seller or Transferred Entity or its applicable Subsidiary or Joint Venture all of such Person’s right, title and interest in and to all Intellectual Property Rights developed by such Person within the scope of such Person’s employment or engagement with or by a Seller or Transferred Entity and (B) are obligated to safeguard and protect such trade secrets included in the Business Intellectual Property Rights and other confidential information (including with respect to the disclosure and use thereof), and, (ii) to the knowledge of Sellers, no such Person has breached any of its obligations with respect to such Business Intellectual Property Rights or other confidential information. To the knowledge of Sellers, no third party Subsidiaries that has infringed, misappropriated or otherwise violated caused any Business Intellectual Property Rights, or has breached any confidentiality obligations with respect to any trade secret included in the Business Intellectual Property Rights, in each case that would reasonably be expected to be material disruption to the Businesses taken as a whole.
(g) There are no pending business of Moon or any of its Subsidiaries or, to the knowledge of SellersMoon, threatened claims against Sellers resulted in any unauthorized disclosure of or Transferred Entities access to any data owned, collected or controlled by Moon or any Person challenging the ownershipof its Subsidiaries, enforceability or validity of any Business Intellectual Property Rights that would reasonably be expected to be material to the Businesses taken in each case except as a whole.
(h) Except as do not and would not reasonably be expected to be material have, individually or in the aggregate, a Moon Material Adverse Effect. Moon and its Subsidiaries have taken commercially reasonable measures to protect the Businesses, taken as a whole, no Seller or Transferred Entity, with respect to the Businesses, uses or distributes, or has used or distributed, any Software licensed, provided, or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) in any manner that would require any source code of any Software identified in Schedule 3.16(a) to be disclosed publicly or to a licensee, licensed for free, or dedicated to the public.
(i) Except as disclosed in Schedule 3.16(i) or as would not reasonably be expected to be material to the Businesses taken as a whole, neither Sellers nor any integrity and security of their Affiliates have (i) disclosed respective information technology systems and the data stored thereon from unauthorized use, access or delivered, or have any obligation (with or without the passage of time or giving of notice) to disclose or deliver, to any modification by third party, (ii) permitted the disclosure or delivery, or has any obligation (with or without the passage of time or giving of notice) to permit the disclosure or delivery, to any escrow agent or other third party of, or (iii) licensed or otherwise made available, or has any obligation (with or without the passage of time or giving of notice) to license or otherwise make available, any source code of the Software identified in Schedule 3.16(a) (other than, (A) in the case of each of (i) through (iii), in the ordinary course of business to employees and independent contractors who are subject to written confidentiality obligations, and (B) in the case of (ii) to any escrow agent who did not release such source code to any third party and who no longer retains a copy of such source code)Persons.
Appears in 2 contracts
Samples: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Intellectual Property; Information Technology. (a) Schedule 3.16(aSection 2.18(a) of the Seller Disclosure Letter contains a complete and accurate list of the following as of the date hereof: (i) all Intellectual Property Rights registrations and applications for registrations of Business Copyrights, Business Patents and Business Trademarks (including domain names); and (ii) all Software applications (including modelling and analytical tools) that are material to the conduct of the Businesses as currently conducted and that are owned by any Transferred Entity or any Asset Seller and (in the case of the Asset Sellers) that are included in the Transferred AssetsIntellectual Property (collectively, “Registered IP”). Each item of Registered IP is subsisting and unexpired and to the Knowledge of Sellers, valid and enforceable. Immediately after the Closing, the Companies will (i) exclusively own all Transferred Intellectual Property free and clear of all Liens (other than Permitted Liens) and (ii) own, or have a license or other right to use (including pursuant to this Agreement or an Ancillary Agreement, as applicable), all Intellectual Property Rights owned by Sellers or their Affiliates that are used in the Business as currently conducted, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the conduct of the Business as currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property Rights of any third Person, and none of the Sellers or any of its Affiliates has received notice of any Action (including cease and desist letters and invitations to take a license) alleging the same (provided that, with respect to patents, the foregoing representation is being made to the Knowledge of Sellers). No Action (including any oppositions, derivations, interferences or re-examinations) is pending or threatened in writing, or that challenges the validity, ownership or enforceability of any Transferred Intellectual Property.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Businesses taken as a wholeBusiness, an Asset Seller to the Knowledge of the Sellers, no third Person is infringing, misappropriating or otherwise violating the Transferred Entity is the sole and exclusive owner of all right, titleIntellectual Property, and interest there is no Action alleging the same.
(d) Sellers and their Affiliates (including the Companies) maintain and implement commercially reasonable practices to protect the confidentiality and secrecy of any material Trade Secrets (i) included in and the Transferred Intellectual Property or (ii) provided to the Companies in connection with the Business under obligations of confidentiality.
(e) Upon completion of the Pre-Closing Reorganization and after effectuating of the Intellectual Property RightsAgreement as contemplated in this Agreement, the Companies will (i) exclusively own all Transferred IT Assets, free and clear of all Liens (other than Permitted Liens. Except ) and (ii) own, or have a valid license or other right, and access, to use (including pursuant to this Agreement or an Ancillary Agreement, as applicable), all other IT Assets owned by Seller or its Affiliates that are used or held for use in the Business as currently conducted, except as would not not, individually or in the aggregate, reasonably be expected to be material to the Businesses taken as have a whole, and except for (i) assets and Intellectual Property Rights used to provide the services to Buyer and its Affiliates under the Transition Services Agreement, (ii) assets and Intellectual Property Rights that would be used to provide to Buyer and its Affiliates the services that are excluded from the Transition Services Agreement and (iii) and the rights granted pursuant to the Intellectual Property License Agreement, an Asset Seller or Transferred Entity is the sole and exclusive owner of all right, title, and interest in and to, or is licensed or otherwise possesses rights to use, all Intellectual Property Rights necessary for conduct of the Businesses as currently conducted. Except as would not reasonably be expected to be material to the Businesses taken as a whole, the Registered Business Intellectual Property Rights are subsisting and the Registered Business Intellectual Property Rights that have been issued or registered are, to the knowledge of Sellers, valid and enforceable.
(c) There are no pending or, to the knowledge of Sellers, threatened claims against any Seller or Transferred Entity by any Person alleging infringement, misappropriation or other violation by a Seller or Transferred Entity for their conduct of the Businesses or use of the Business Intellectual Property Rights, and the Sellers and Transferred Entities have not received written notice of any such claim in the past three (3) years, nor has any Seller or Transferred Entity received a written invitation or request in the past three (3) years that it consider obtaining a license under any Patent rights of a third party for use in the Businesses, in each case, that would reasonably be expected to be material to the Businesses taken as a whole.
(d) Except as would not reasonably be expected to be material to the Businesses, taken as a whole, the Sellers have taken reasonable steps to maintain the confidentiality of the trade secrets included in the Business Intellectual Property Rights.
(e) Except as would not reasonably be expected to be material to the Businesses taken as a whole, none of the Sellers or Transferred Entities, the products or services distributed, sold or offered by the Businesses, nor the conduct of the Businesses, has, in the past three (3) years infringed, misappropriated or otherwise violated, or as of the date hereof infringes, misappropriates or otherwise violates, any Intellectual Property Right of any third party. In the past three (3) years, no Seller or Transferred Entity has made any written, or to the knowledge of the Sellers, non-written, claim of infringement, misappropriation or other violation by any Person of any Business Intellectual Property RightsMaterial Adverse Effect.
(f) Except The patents and patent applications set forth on Section 2.18(a) of the Seller Disclosure Letter are all of the patents and patent applications owned by Sellers and their Subsidiaries as would not reasonably be expected to be material of the Closing that claim or cover Process Inventions (as defined in the Intellectual Property Agreement) that were used in the conduct and operation of the Business as of or prior to the Businesses taken as a whole, (i) all past and present employees, contractors and consultants of the Sellers or Transferred Entities who have had access to trade secrets included in the Business Intellectual Property Rights or other confidential information Related to the Businesses or have participated in the development of Business Intellectual Property Rights or other confidential information Related to the Businesses for the Sellers or Transferred Entity are bound by written agreements pursuant to which such Persons (A) assign to a Seller or Transferred Entity or its applicable Subsidiary or Joint Venture all of such Person’s right, title and interest in and to all Intellectual Property Rights developed by such Person within the scope of such Person’s employment or engagement with or by a Seller or Transferred Entity and (B) are obligated to safeguard and protect such trade secrets included in the Business Intellectual Property Rights and other confidential information (including with respect to the disclosure and use thereof), and, (ii) to the knowledge of Sellers, no such Person has breached any of its obligations with respect to such Business Intellectual Property Rights or other confidential information. To the knowledge of Sellers, no third party has infringed, misappropriated or otherwise violated any Business Intellectual Property Rights, or has breached any confidentiality obligations with respect to any trade secret included in the Business Intellectual Property Rights, in each case that would reasonably be expected to be material to the Businesses taken as a wholeClosing.
(g) There are no pending or, to the knowledge of Sellers, threatened claims against Sellers or Transferred Entities by any Person challenging the ownership, enforceability or validity of any Business Intellectual Property Rights that would reasonably be expected to be material to the Businesses taken as a whole.
(h) Except as would not reasonably be expected to be material to the Businesses, taken as a whole, no Seller or Transferred Entity, with respect to the Businesses, uses or distributes, or has used or distributed, any Software licensed, provided, or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) in any manner that would require any source code of any Software identified in Schedule 3.16(a) to be disclosed publicly or to a licensee, licensed for free, or dedicated to the public.
(i) Except as disclosed in Schedule 3.16(i) or as would not reasonably be expected to be material to the Businesses taken as a whole, neither Sellers nor any of their Affiliates have (i) disclosed or delivered, or have any obligation (with or without the passage of time or giving of notice) to disclose or deliver, to any third party, (ii) permitted the disclosure or delivery, or has any obligation (with or without the passage of time or giving of notice) to permit the disclosure or delivery, to any escrow agent or other third party of, or (iii) licensed or otherwise made available, or has any obligation (with or without the passage of time or giving of notice) to license or otherwise make available, any source code of the Software identified in Schedule 3.16(a) (other than, (A) in the case of each of (i) through (iii), in the ordinary course of business to employees and independent contractors who are subject to written confidentiality obligations, and (B) in the case of (ii) to any escrow agent who did not release such source code to any third party and who no longer retains a copy of such source code).
Appears in 1 contract
Samples: Equity Purchase Agreement (Baxter International Inc)
Intellectual Property; Information Technology. (a) Section 3.15 of the Company Disclosure Schedule 3.16(a) contains sets forth a complete and correct list of the following as of the date hereof: (i) all registrations Intellectual Property that is owned or purported to be owned by the Company or any of its Subsidiaries (the “Owned Intellectual Property”) that is registered or subject to an application for registration or that is otherwise material to the Company, indicating, as applicable, the jurisdiction in which each of the items was applied for, filed, issued or registered, the application/registration number and applications for registrations the current owner of Business Copyrights, Business Patents and Business Trademarks (including domain names); record and (ii) all Software applications (including modelling and analytical tools) that are material Intellectual Property exclusively licensed to the conduct of the Businesses as currently conducted and that are owned by any Transferred Entity Company or any Asset Seller and of its Subsidiaries (in the case of “Exclusively Licensed Intellectual Property”), indicating the Asset Sellers) that are included in the Transferred Assetsagreement pursuant to which such license or right to use is granted.
(b) Except as has not had and would not reasonably be expected to be material to have, either individually or in the Businesses taken as aggregate, a wholeMaterial Adverse Effect, an Asset Seller or Transferred Entity is the sole Company and its Subsidiaries, (i) collectively, are the exclusive owner owners of all right, title, and interest in and to the Business Owned Intellectual Property RightsProperty, free and clear of all Liens Encumbrances other than Permitted Liens. Encumbrances, and (ii) have the sole and exclusive right to bring a claim or suit against a third party for past, present or future infringement, misappropriation and violation (as applicable) of the Owned Intellectual Property and the Exclusively Licensed Intellectual Property, and to retain for itself any damages recovered in any such actions.
(c) Except as has not had and would not reasonably be expected to be material to have, either individually or in the Businesses taken as aggregate, a wholeMaterial Adverse Effect, and except for (i) assets and all Owned Intellectual Property Rights used to provide the services to Buyer and its Affiliates under the Transition Services Agreement, (ii) assets and Intellectual Property Rights that would be used to provide to Buyer and its Affiliates the services that are excluded from the Transition Services Agreement and (iii) and the rights granted pursuant to the Intellectual Property License Agreement, an Asset Seller or Transferred Entity is the sole and exclusive owner of all right, title, and interest in and to, or is licensed or otherwise possesses rights to use, all Intellectual Property Rights necessary for conduct of the Businesses as currently conducted. Except as would not reasonably be expected to be material to the Businesses taken as a whole, the Registered Business Intellectual Property Rights are subsisting and the Registered Business Intellectual Property Rights that have been issued or registered areand, to the knowledge Knowledge of Sellersthe Company, all other Owned Intellectual Property (including Intellectual Property that is subject to an application for registration), is subsisting, valid and enforceable.
(c) There are no pending or, to the knowledge of Sellers, threatened claims against any Seller or Transferred Entity by any Person alleging infringement, misappropriation or other violation by a Seller or Transferred Entity for their conduct of the Businesses or use of the Business Intellectual Property Rights, and the Sellers and Transferred Entities have not received written notice of any such claim in the past three (3) years, nor has any Seller or Transferred Entity received a written invitation or request in the past three (3) years that it consider obtaining a license under any Patent rights of a third party for use in the Businesses, in each case, that would reasonably be expected to be material to the Businesses taken as a whole.
(d) Except as has not had and would not reasonably be expected to be material to have, either individually or in the Businessesaggregate, taken as a wholeMaterial Adverse Effect, the Sellers have taken reasonable steps Company or one of its Subsidiaries owns, or is licensed or otherwise permitted to maintain the confidentiality use (in each case, free and clear of the trade secrets included in the Business all Encumbrances other than Permitted Encumbrances) all Intellectual Property Rightsused or held for use in, or necessary for, the Company.
(e) Except as has not had and would not reasonably be expected to be material to have, either individually or in the Businesses taken as aggregate, a wholeMaterial Adverse Effect, none of the Sellers or Transferred Entities, the products or services distributed, sold or offered by the Businesses, nor the conduct of the Businessesbusiness of the Company and its Subsidiaries as currently conducted and as it has been conducted since December 29, has2012, in and each of the past three (3) years products and services of the Company and its Subsidiaries, does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, or as the Intellectual Property of any person. None of the date hereof infringesCompany or its Subsidiaries has received since December 29, misappropriates or otherwise violates2012, any Intellectual Property Right of any third party. In the past three (3) years, no Seller or Transferred Entity has made any written, or to the knowledge of the Sellers, non-writtenwritten notice, claim of or demand (including invitations to license) alleging any such infringement, misappropriation or other violation by any Person of any Business Intellectual Property Rights.
(f) Except as that has not had and would not reasonably be expected to be material have, either individually or in the aggregate, a Material Adverse Effect, nor, to the Businesses taken Knowledge of the Company, is any such notice, claim or demand threatened.
(f) To the Knowledge of the Company, no person is infringing, misappropriating or otherwise violating any right of the Company or its Subsidiaries with respect to any Owned Intellectual Property or any Exclusively Licensed Intellectual Property, and neither the Company nor any of its Subsidiaries has, since December 29, 2012, asserted or threatened to assert any claims of such infringement, misappropriation or other violation, and, to the Knowledge of the Company, no valid basis for any such claim exists.
(g) Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a whole, Material Adverse Effect:
(i) all past and present employees, contractors and consultants To the Knowledge of the Sellers or Transferred Entities who have had access to trade secrets included in the Business Intellectual Property Rights or other confidential information Related to the Businesses or have participated in the development of Business Intellectual Property Rights or other confidential information Related to the Businesses for the Sellers or Transferred Entity are bound by written agreements pursuant to which such Persons Company, (A) assign no Owned Intellectual Property is being used (or not used) or enforced in a manner that could reasonably be expected to result in the abandonment, cancelation or unenforceability of such Owned Intellectual Property and (B) the Company and its Subsidiaries have taken all actions reasonably necessary to ensure full protection of the Owned Intellectual Property under any applicable Law (including timely making and maintaining in full force and effect all necessary filings, registrations and issuances, and making payments therefor, with the appropriate foreign and domestic agencies required to maintain in subsistence all Owned Intellectual Property that is registered or subject to an application for registration); and
(ii) The Company has policies in place designed to maintain the secrecy of all material Trade Secrets used or held for use in the Company, and, to the Knowledge of the Company, has complied in all material respects with such policies and no unauthorized disclosure or use of any such Trade Secrets have been made.
(h) Except as have not had and would not reasonably be expected to have, either individually or in the aggregate, a Seller Material Adverse Effect, each of the Company and its Subsidiaries is in compliance with all applicable contractual requirements and all Laws pertaining to personally identifiable information and information privacy and security, including any privacy policy concerning the collection and use of personally identifiable information.
(i) Except as have not had and would not reasonably be expected to have, either individually or Transferred Entity or in the aggregate, a Material Adverse Effect: (i) each of the Company and its applicable Subsidiary or Joint Venture Subsidiaries have secured from all of their current and former employees, consultants and contractors who have contributed to the creation, development, improvement or modification of material Intellectual Property for or on their behalf assignments to the Company or one of its Subsidiaries, as applicable, of all such Personperson’s right, title and interest in and to all such Intellectual Property Rights developed that the Company or its Subsidiary does not already own by such Person within the scope operation of such Person’s employment or engagement with or by a Seller or Transferred Entity Law; and (B) are obligated to safeguard and protect such trade secrets included in the Business Intellectual Property Rights and other confidential information (including with respect to the disclosure and use thereof), and, (ii) to without limiting the knowledge of Sellersforegoing, no such Person has breached any of its obligations with respect to such Business Intellectual Property Rights or other confidential information. To the knowledge of Sellers, no third party has infringed, misappropriated or otherwise violated any Business Intellectual Property Rights, person owns or has breached any confidentiality obligations with respect right, claim, interest or option, including the right to further remuneration or consideration or to assert any trade secret included in the Business Intellectual Property Rights, in each case that would reasonably be expected to be material to the Businesses taken as a whole.
(g) There are no pending or, to the knowledge of Sellers, threatened claims against Sellers or Transferred Entities by any Person challenging the ownership, enforceability or validity of any Business Intellectual Property Rights that would reasonably be expected to be material to the Businesses taken as a whole.
(h) Except as would not reasonably be expected to be material to the Businesses, taken as a whole, no Seller or Transferred Entitymoral rights, with respect to the Businesses, uses or distributes, or has used or distributed, any Software licensed, provided, or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) in any manner that would require any source code of any Software identified in Schedule 3.16(a) to be disclosed publicly or to a licensee, licensed for free, or dedicated to the publicmaterial Owned Intellectual Property.
(ij) Except as disclosed For purposes of this Agreement, “Intellectual Property” means all intellectual property and other similar proprietary rights in Schedule 3.16(i) any jurisdiction throughout the world, whether registered or as would not reasonably be expected unregistered, including those rights in and to be material to the Businesses taken as a whole, neither Sellers nor any of their Affiliates have (i) disclosed or delivered, or have any obligation (with or without the passage of time or giving of notice) to disclose or deliver, to any third party, (ii) permitted the disclosure or delivery, or has any obligation (with or without the passage of time or giving of notice) to permit the disclosure or delivery, to any escrow agent or other third party of, or (iii) licensed or otherwise made available, or has any obligation (with or without the passage of time or giving of notice) to license or otherwise make available, any source code of the Software identified in Schedule 3.16(a) (other than, (A) in the case of each of (i) through (iii), in the ordinary course of business to employees and independent contractors who are subject to written confidentiality obligations, and (B) in the case of (ii) to any escrow agent who did not release such source code to any third party and who no longer retains a copy of such source code).all:
Appears in 1 contract
Intellectual Property; Information Technology. (a) Schedule 3.16(a) contains a list Seller and its Affiliates, and upon completion of the following as of Pre-Closing Reorganization, the date hereof: Company, will (i) exclusively own all registrations Transferred Intellectual Property, free and applications for registrations clear of Business Copyrights, Business Patents and Business Trademarks all Liens (including domain names); other than Permitted Liens) and (ii) own, or have a license or other right to use (including, following the Closing, pursuant to the Transition Services Agreement) all Software applications (including modelling and analytical tools) other material Intellectual Property Rights used in the Business as currently conducted, except for the Seller Marks. The Transferred Intellectual Property constitutes all Intellectual Property Rights owned by Seller or its Affiliates that are material Related to the conduct of the Businesses as currently conducted and that are owned by any Transferred Entity or any Asset Seller and (in the case of the Asset Sellers) that are Business. All Registered Intellectual Property Rights included in the Transferred AssetsIntellectual Property are valid and enforceable and are not subject to any pending cancellation, opposition, interference, reissue or reexamination proceeding.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material Liability to the Company following the completion of the Pre-Closing Reorganization, (i) the conduct of the Business as currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property Rights of any third Person, and (ii) neither Seller nor any of its Affiliates has received any written notice or claim alleging that the Business is infringing on or has misappropriated or otherwise violated the Intellectual Property Rights of any third Person or challenging Seller’s or its Affiliates’ ownership or use of any Transferred Intellectual Property. To the Knowledge of Seller, no third Person is infringing, misappropriating or otherwise violating the Transferred Intellectual Property in a manner that would reasonably be expected to be materially adverse to the Business. No Person other than (A) as of the Execution Date, Seller and its Affiliates, and (B) following the Pre-Closing Reorganization, the Company, possesses any current or contingent material rights of any kind to any source code included in Transferred Intellectual Property. All current and former employees of Seller and its Affiliates who have contributed to or created any Transferred Intellectual Property that is material to the Businesses taken as Business meet the following requirements: (x)(i) any Intellectual Property Rights created by them and included in any Transferred Intellectual Property were created by them entirely within the scope of their employment by Seller and its Affiliates; (y) their copyrightable work product included in any Transferred Intellectual Property is a whole, an Asset Seller work made for hire under U.S. copyright law; or Transferred Entity is the sole and exclusive owner of all right, title, and interest (z) they have otherwise validly assigned their rights in and to the Business such Transferred Intellectual Property Rights, free and clear of all Liens other than Permitted Liens. Except as would not reasonably be expected to be material to the Businesses taken as a whole, and except for (i) assets and Intellectual Property Rights used to provide the services to Buyer and its Affiliates under the Transition Services Agreement, (ii) assets and Intellectual Property Rights that would be used to provide to Buyer and its Affiliates the services that are excluded from the Transition Services Agreement and (iii) and the rights granted pursuant to the Intellectual Property License Agreement, an Asset Seller or Transferred Entity is the sole and exclusive owner an Affiliate of all right, title, and interest in and to, or is licensed or otherwise possesses rights to use, all Intellectual Property Rights necessary for conduct of the Businesses as currently conducted. Except as would not reasonably be expected to be material to the Businesses taken as a whole, the Registered Business Intellectual Property Rights are subsisting and the Registered Business Intellectual Property Rights that have been issued or registered are, to the knowledge of Sellers, valid and enforceableSeller under invention assignment agreements.
(c) There are no pending orTo the Knowledge of Seller, to Software included in the knowledge of Sellers, threatened claims against any Seller or Transferred Entity by any Person alleging infringement, misappropriation or other violation by a Seller or Transferred Entity for their conduct of the Businesses or use of the Business Intellectual Property Rights(i) is free from known defects, errors in design, and operating defects, and (ii) does not contain any disabling mechanisms or protection features that are designed to disrupt or prevent the Sellers and Transferred Entities have not received written notice use of any such claim Software, including computer viruses, time locks, or any code, instruction, or device that may be used without authority to access, modify, delete or damage any such Software or any system or equipment on which any such Software is installed or in the past three (3) years, nor has any Seller or Transferred Entity received a written invitation or request in the past three (3) years that connection with which it consider obtaining a license under any Patent rights of a third party for use in the Businessesmay operate, in each casecase of clauses (i) and (ii), that would reasonably be expected to be have a material to adverse impact on the Businesses taken as a wholeBusiness.
(d) Except as would not reasonably be expected Seller and its Affiliates have made commercially reasonable efforts to be (i) maintain and protect the confidentiality of any material Trade Secrets included in the Transferred Intellectual Property and (ii) protect the security and integrity of the Transferred IT Assets. To the Knowledge of Seller, no such Trade Secrets material to the BusinessesBusiness have been authorized to be disclosed or have been actually disclosed to a third Person, taken as other than (x) to Seller or any of its Affiliates, employees or Independent Contractors, or (y) pursuant to a whole, non-disclosure agreement restricting the Sellers have taken reasonable steps to maintain the confidentiality of the trade secrets included in the Business Intellectual Property Rightsdisclosure and use thereof.
(e) Except as would not reasonably be expected Seller and its Affiliates, and upon completion of the Pre-Closing Reorganization, the Company, will (i) exclusively own all Transferred IT Assets, and (ii) own, or have a license or other right to be material use (including, following the Closing, pursuant to the Businesses taken as a whole, none of the Sellers or Transferred Entities, the products or services distributed, sold or offered by the Businesses, nor the conduct of the Businesses, has, Transition Services Agreement) all material IT Assets used in the past three (3) years infringed, misappropriated or otherwise violated, or Business as of the date hereof infringes, misappropriates or otherwise violates, any Intellectual Property Right of any third party. In the past three (3) years, no Seller or Transferred Entity has made any written, or to the knowledge of the Sellers, non-written, claim of infringement, misappropriation or other violation by any Person of any Business Intellectual Property Rightscurrently conducted.
(f) Except as would not not, individually or in the aggregate, reasonably be expected to be result in a material Liability to the Businesses taken as a whole, (i) all past and present employees, contractors and consultants Company following the completion of the Sellers or Transferred Entities who have had Pre-Closing Reorganization, to the Knowledge of Seller, since January 1, 2019, there has been no unauthorized access to trade secrets included in or unauthorized use of any Transferred IT Assets or any Personal Information that, upon completion of the Business Intellectual Property Rights or other confidential information Related Pre-Closing Reorganization, will be transferred to the Businesses Company (“Transferred Personal Information”). The Transferred IT Assets do not contain any virus or have participated in the development of Business Intellectual Property Rights or other confidential information Related to the Businesses for the Sellers or Transferred Entity are bound by written agreements pursuant to which such Persons (A) assign to a Seller or Transferred Entity or its applicable Subsidiary or Joint Venture all of such Person’s right, title and interest in and to all Intellectual Property Rights developed by such Person within the scope of such Person’s employment or engagement with or by a Seller or Transferred Entity and (B) are obligated to safeguard and protect such trade secrets included in the Business Intellectual Property Rights and other confidential information (including with respect to the disclosure and use thereof), and, (ii) to the knowledge of Sellers, no such Person has breached any of its obligations with respect to such Business Intellectual Property Rights or other confidential information. To the knowledge of Sellers, no third party has infringed, misappropriated or otherwise violated any Business Intellectual Property Rights, or has breached any confidentiality obligations with respect to any trade secret included in the Business Intellectual Property Rights, in each case malware that would reasonably be expected to be have a material to adverse impact on the Businesses taken as a wholeconduct of the Business. The collection, retention, use, transfer and distribution by Seller and its Affiliates of Transferred Personal Information comply in all material respects with all applicable Laws.
(g) There Notwithstanding any other representations and warranties made by Seller in this Agreement, the representations and warranties in this Section 2.16 and in Section 2.12(a)(iii) are no pending or, the only representations and warranties made by Seller in this Agreement with respect to the knowledge of Sellers, threatened claims against Sellers or Transferred Entities by any Person challenging the ownership, enforceability or validity of any Business Intellectual Property Rights that would reasonably be expected to be material to the Businesses taken as a wholeand IT Assets.
(h) Except as would not reasonably be expected to be material to the Businesses, taken as a whole, no Seller or Transferred Entity, with respect to the Businesses, uses or distributes, or has used or distributed, any Software licensed, provided, or distributed under any open source license, including any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) in any manner that would require any source code of any Software identified in Schedule 3.16(a) to be disclosed publicly or to a licensee, licensed for free, or dedicated to the public.
(i) Except as disclosed in Schedule 3.16(i) or as would not reasonably be expected to be material to the Businesses taken as a whole, neither Sellers nor any of their Affiliates have (i) disclosed or delivered, or have any obligation (with or without the passage of time or giving of notice) to disclose or deliver, to any third party, (ii) permitted the disclosure or delivery, or has any obligation (with or without the passage of time or giving of notice) to permit the disclosure or delivery, to any escrow agent or other third party of, or (iii) licensed or otherwise made available, or has any obligation (with or without the passage of time or giving of notice) to license or otherwise make available, any source code of the Software identified in Schedule 3.16(a) (other than, (A) in the case of each of (i) through (iii), in the ordinary course of business to employees and independent contractors who are subject to written confidentiality obligations, and (B) in the case of (ii) to any escrow agent who did not release such source code to any third party and who no longer retains a copy of such source code).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Cornerstone Building Brands, Inc.)
