Common use of Intellectual Property; IT Systems Clause in Contracts

Intellectual Property; IT Systems. (a) Part 2.8(a) of the Company Disclosure Schedule identifies as of the date of this Agreement (1) (i) the name of applicant/registrant and current owner, (ii) the jurisdiction of application/issuance/registration and (iii) the application, issuance, publication or registration number for each item of Registered IP (other than domain names) and (2) all domain names owned or purported to be owned by any Acquired Corporation. Each of the patents and patent applications included in the Registered IP that are owned solely by an Acquired Corporation (and each of such Acquired Corporations’ co-owned patents and patent applications) properly identifies by name each and every inventor of the claims thereof as determined in accordance with applicable Legal Requirements of the United States. The Acquired Corporations solely and exclusively own and possess all right, title and interest in and to or have the right to use, pursuant to a valid written agreement, all material Company IP, free and clear of all Encumbrances other than: (x) Permitted Encumbrances and any Encumbrances caused or created by any action or failure to act by any Person other than the Acquired Corporations; and (y) Company IP validly licensed to any Acquired Corporation in the ordinary course or under Contracts disclosed under (or expressly exempted from the disclosure requirements for) the Disclosure Schedule. As of the date of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than initial examination proceedings) is pending or, to the knowledge of the Company, threatened, in which the scope, validity, enforceability or ownership of any Registered IP owned by any Acquired Corporation is being or has been contested or challenged. All Company IP owned or purported to be owned by any Acquired Corporation is (x) subsisting and (y) to the knowledge of the Company, all (i) issued patents, (ii) registered trademarks, and (iii) registered copyrights material to the business of the Acquired Corporations that, in each case, are included in Company IP and that are owned or purported to be owned by an Acquired Corporation (I) are valid and enforceable and in full force and effect and (II) have not lapsed (except for any patents that are owned or purported by to be owned by an Acquired Corporation having lapsed or expired at the end of their statutory term), been abandoned, been disclaimed, been cancelled or been forfeited, except in each case of clauses (x) and (y) for such exceptions as have not resulted in, individually or in the aggregate, a Material Adverse Effect.

Intellectual Property; IT Systems. (a) Part 2.8(aSchedule 3.11(a)(i) sets forth a list of all patents, patent applications (including any provisional applications, divisions, continuations or continuations in part), material unregistered trademarks, registered trademarks and applications for registration for trademarks, copyright registrations and applications for registration of copyrights, and domain name registrations in each case owned by or held in the name of the Company Disclosure Schedule identifies Company, specifying as of the date of this Agreement (1) to each such item, as applicable, (i) the name of applicant/registrant and current owneritem (with respect to trademarks), or title (with respect to all other items), (ii) the jurisdiction owner of application/issuance/registration and the item, (iii) the applicationjurisdiction in which the item is issued or registered or in which any application for issuance or registration has been filed, including the respective issuance, publication registration or application number and (iv) the date of application and issuance or registration number for of the item (the “Material Owned Intellectual Property”). Except as set forth on Schedule 3.11(a)(ii), (A) each item of Registered IP Intellectual Property owned by the Company including the Material Owned Intellectual Property is valid and in full force and effect and is owned by the Company free and clear of all Encumbrances and other claims, including any claims of joint ownership or inventorship, (B) the registrations and applications for registration of the Material Owned Intellectual Property are held of record in the Company’s name, and (C) none of the Material Owned Intellectual Property is the subject of any proceeding contesting its validity, enforceability or the Company’s ownership thereof. All issuance, renewal, maintenance and other than payments that are or have become due as of the date hereof with respect to the Material Owned Intellectual Property have been timely paid by or on behalf of the Company. Schedule 3.11(a)(iii) sets forth a true and complete list of all Intellectual Property licensed to the Company and the license or agreement pursuant to which the Company obtained a license to such Intellectual Property. To the knowledge of Seller Parties, except as set forth on Schedule 3.11(a)(iii): (u) the Company owns or possesses adequate licenses or other valid rights to use all patents, patent applications, trademarks, trademark applications, copyrights, industrial designs, software, databases, data compilations, domain names, know-how, trade secrets, product formulas, inventions, rights-to-use and other industrial and intellectual property rights (collectively, “Intellectual Property”) used in the conduct of the Business, (v) the conduct of the Business of the Company does not infringe, misappropriate, dilute or conflict with, and has not conflicted with any Intellectual Property of any other Person, (2w) all domain names neither the Company nor any Seller Party has received any notices alleging that the conduct of the Business, including the marketing, sale and distribution of the products and services of the Business, infringes, dilutes, misappropriates or otherwise violates any Person’s Intellectual Property (including, for the avoidance of doubt, any cease and desist letter or offer of license), (x) no current or former employee of the Company and no other Person owns or has any proprietary, financial or other interest, direct or indirect, in whole or in part, and including any rights to royalties or other compensation, in any of Intellectual Property owned or purported to be owned by any Acquired Corporation. Each of the patents and patent applications included in the Registered IP that are owned solely by an Acquired Corporation (and each of such Acquired Corporations’ co-owned patents and patent applications) properly identifies by name each and every inventor of the claims thereof as determined in accordance with applicable Legal Requirements of the United States. The Acquired Corporations solely and exclusively own and possess all rightCompany, title and interest in and to or have the right to use, pursuant to a valid written agreement, all material Company IP, free and clear of all Encumbrances other than: (x) Permitted Encumbrances and any Encumbrances caused or created by any action or failure to act by any Person other than the Acquired Corporations; and (y) there is no agreement or other contractual restriction affecting the use by the Company IP validly licensed to of any Acquired Corporation in the ordinary course or under Contracts disclosed under (or expressly exempted from the disclosure requirements for) the Disclosure Schedule. As of the date of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than initial examination proceedings) is pending or, to the knowledge of the Company, threatened, in which the scope, validity, enforceability or ownership of any Registered IP owned by any Acquired Corporation is being or has been contested or challenged. All Company IP Intellectual Property owned or purported to be owned by any Acquired Corporation is (x) subsisting and (y) to the knowledge of the Company, all (i) issued patents, (ii) registered trademarks, and (iiiz) registered copyrights material to the business none of the Acquired Corporations thatSeller Parties is aware of any present infringement, in each casedilution, are included in Company IP and that are misappropriation or other violation of any of the Intellectual Property owned or purported to be owned by an Acquired Corporation (I) are valid the Company by any Person, and enforceable and in full force and effect and (II) have not lapsed (except neither the Company nor any Seller Party has asserted or threatened any claim or objection against any Person for any patents that are owned such infringement or purported by to be owned by an Acquired Corporation having lapsed misappropriation nor is there any basis in fact for any such objection or expired at the end of their statutory term), been abandoned, been disclaimed, been cancelled or been forfeited, except in each case of clauses (x) and (y) for such exceptions as have not resulted in, individually or in the aggregate, a Material Adverse Effectclaim.

Intellectual Property; IT Systems. (a) Part 2.8(a) of the Company Disclosure Schedule identifies Except as of the date of this Agreement (1) (i) the name of applicant/registrant and current owner, (ii) the jurisdiction of application/issuance/registration and (iii) the application, issuance, publication or registration number for each item of Registered IP (other than domain names) and (2) all domain names owned or purported would not reasonably be expected to be owned by any Acquired Corporation. Each of the patents and patent applications included in the Registered IP that are owned solely by an Acquired Corporation (and each of such Acquired Corporations’ co-owned patents and patent applications) properly identifies by name each and every inventor of the claims thereof as determined in accordance with applicable Legal Requirements of the United States. The Acquired Corporations solely and exclusively own and possess all right, title and interest in and to or have the right to use, pursuant to a valid written agreement, all material Company IP, free and clear of all Encumbrances other than: (x) Permitted Encumbrances and any Encumbrances caused or created by any action or failure to act by any Person other than the Acquired Corporations; and (y) Company IP validly licensed to any Acquired Corporation in the ordinary course or under Contracts disclosed under (or expressly exempted from the disclosure requirements for) the Disclosure Schedule. As of the date of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than initial examination proceedings) is pending or, to the knowledge of the Company, threatened, in which the scope, validity, enforceability or ownership of any Registered IP owned by any Acquired Corporation is being or has been contested or challenged. All Company IP owned or purported to be owned by any Acquired Corporation is (x) subsisting and (y) to the knowledge of the Company, all (i) issued patents, (ii) registered trademarks, and (iii) registered copyrights material to the business of the Acquired Corporations that, in each case, are included in Company IP and that are owned or purported to be owned by an Acquired Corporation (I) are valid and enforceable and in full force and effect and (II) have not lapsed (except for any patents that are owned or purported by to be owned by an Acquired Corporation having lapsed or expired at the end of their statutory term), been abandoned, been disclaimed, been cancelled or been forfeited, except in each case of clauses (x) and (y) for such exceptions as have not resulted inhave, individually or in the aggregate, a Company Material Adverse Effect, the Company and its Subsidiaries either own or have a right to use, pursuant to a license or otherwise, in each case, free and clear of all Liens except Permitted Liens, such patents, trademarks, trade names, trade dress, service marks, domain names, copyrights, copyrightable works and any applications and registrations for any of the foregoing, trade secrets, know-how, technology, computer software (including databases and related documentation), inventions and discoveries, rights of publicity and other tangible and intangible proprietary information and intellectual property rights (collectively, “Intellectual Property”) as are necessary to conduct the business of the Company and its Subsidiaries as currently conducted by the Company and its Subsidiaries. Except for the assets, services and rights provided or otherwise made available to the Company and its Subsidiaries under the Seller-Company TSA, the Seller-ABS TSA and Cross-License Agreement, the Company and its Subsidiaries collectively will, as of the Closing Date, own or have the right to use all material Intellectual Property that is (i) owned by the Company and its Subsidiaries as of the Closing Date and (ii) used or necessary for the conduct of their respective businesses and operations as conducted immediately prior to the Closing in all material respects. Section 3.15(a) of the Seller Disclosure Letter lists all registrations and applications for Intellectual Property owned by the Company or any of its Subsidiaries and material to the respective businesses of the Company and its Subsidiaries as of the date hereof. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all applications and registrations set forth in Section 3.15(a) of the Seller Disclosure Letter are subsisting; (ii) the Company and its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of the trade secrets and other non-public proprietary information of the Company and its Subsidiaries that are material to their respective businesses or that are otherwise required by the Company or its Subsidiaries under applicable Law or written agreement to be kept confidential; and (iii) since February 27, 2010, no unauthorized disclosure of any such trade secrets or information has been made. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries have infringed, misappropriated or violated any Intellectual Property of any third party in the past three years; and (ii) no third party is currently infringing, misappropriating or violating, any Intellectual Property owned by or exclusively licensed to the Company or any of its Subsidiaries.

Intellectual Property; IT Systems. (a) Part 2.8(aSchedule 3.11(a)(i) sets forth a list of all patents, patent applications (including any provisional applications, divisions, continuations or continuations in part), material unregistered trademarks, registered trademarks and applications for registration for trademarks, copyright registrations and applications for registration of copyrights, and domain name registrations in each case owned by or held in the Company Disclosure Schedule identifies name of Seller, specifying as of the date of this Agreement (1) to each such item, as applicable, (i) the name of applicant/registrant and current owneritem (with respect to trademarks), or title (with respect to all other items), (ii) the jurisdiction owner of application/issuance/registration and the item, (iii) the applicationjurisdiction in which the item is issued or registered or in which any application for issuance or registration has been filed, including the respective issuance, publication registration or application number and (iv) the date of application and issuance or registration number for of the item (the “Material Owned Intellectual Property”). Except as set forth on Schedule 3.11(a)(ii), (A) each item of Registered IP Intellectual Property owned by Seller including the Material Owned Intellectual Property is valid and in full force and effect and is owned by Seller free and clear of all Encumbrances and other claims, including any claims of joint ownership or inventorship, (B) the registrations and applications for registration of the Material Owned Intellectual Property are held of record in Seller’s name, and (C) none of the Material Owned Intellectual Property is the subject of any proceeding contesting its validity, enforceability or Seller’s ownership thereof. All issuance, renewal, maintenance and other than payments that are or have become due as of the date hereof with respect to the Material Owned Intellectual Property have been timely paid by or on behalf of Seller. Schedule 3.11(a)(iii) sets forth a true and complete list of all Intellectual Property licensed to Seller and the license or agreement pursuant to which Seller obtained a license to such Intellectual Property. Except as set forth on Schedule 3.11(a)(iii): (u) Seller owns or possesses adequate licenses or other valid rights to use all patents, patent applications, trademarks, trademark applications, copyrights, industrial designs, software, databases, data compilations, domain names, know-how, trade secrets, product formulas, inventions, rights-to-use and other industrial and intellectual property rights (collectively, “Intellectual Property”) used in the conduct of the Business, (v) to the knowledge of Seller, the conduct of the Business of Seller does not infringe, misappropriate, dilute or conflict with, and has not conflicted with any Intellectual Property of any other Person, (2w) all domain names neither Seller nor Founder has received any written notice alleging that the conduct of the Business, including the marketing, sale and distribution of the products and services of the Business, infringes, dilutes, misappropriates or otherwise violates any Person’s Intellectual Property (including, for the avoidance of doubt, any cease and desist letter or offer of license), (x) no current or former employee of Seller and no other Person owns or has any proprietary, financial or other interest, direct or indirect, in whole or in part, and including any rights to royalties or other compensation, in any of Intellectual Property owned or purported to be owned by any Acquired Corporation. Each of the patents and patent applications included in the Registered IP that are owned solely by an Acquired Corporation (and each of such Acquired Corporations’ co-owned patents and patent applications) properly identifies by name each and every inventor of the claims thereof as determined in accordance with applicable Legal Requirements of the United States. The Acquired Corporations solely and exclusively own and possess all rightSeller, title and interest in and to or have the right to use, pursuant to a valid written agreement, all material Company IP, free and clear of all Encumbrances other than: (x) Permitted Encumbrances and any Encumbrances caused or created by any action or failure to act by any Person other than the Acquired Corporations; and (y) Company IP validly licensed to there is no agreement or other contractual restriction affecting the use by Seller of any Acquired Corporation in the ordinary course or under Contracts disclosed under (or expressly exempted from the disclosure requirements for) the Disclosure Schedule. As of the date of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other than initial examination proceedings) is pending or, to the knowledge of the Company, threatened, in which the scope, validity, enforceability or ownership of any Registered IP owned by any Acquired Corporation is being or has been contested or challenged. All Company IP Intellectual Property owned or purported to be owned by any Acquired Corporation is (x) subsisting and (y) to the knowledge of the Company, all (i) issued patents, (ii) registered trademarksSeller, and (iiiz) registered copyrights material to the business Seller has not received any written notice concerning any present claim of infringement, dilution, misappropriation or other violation of any of the Acquired Corporations that, in each case, are included in Company IP and that are Intellectual Property owned or purported to be owned by an Acquired Corporation (I) are valid Seller by any Person, and enforceable and in full force and effect and (II) have not lapsed (except neither Seller nor Founder has asserted or threatened any written claim or objection against any Person for any patents that are owned such infringement or purported by misappropriation nor, to be owned by an Acquired Corporation having lapsed the knowledge of Seller or expired at the end of their statutory term)Founder, been abandoned, been disclaimed, been cancelled is there any basis in fact for any such objection or been forfeited, except in each case of clauses (x) and (y) for such exceptions as have not resulted in, individually or in the aggregate, a Material Adverse Effectclaim.