Intellectual Property; Privacy. (a) Section 3.11(a) of the Disclosure Schedule sets forth, with respect to all Company Intellectual Property, a complete and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and unregistered Trademarks) and registered Copyrights, indicating for each, the applicable jurisdiction, registration number (or application number) and date issued (or date filed). All registered Trademarks, Patents and registered Copyrights of the Company are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark of the Company has been or is now involved in any cancellation proceeding and, to the knowledge of the Company, no such Action is threatened with respect to any of such Trademarks. All Trademarks of the Company have been in continuous use by the Company since they were first used by the Company. To the knowledge of the Company, there has been no prior use of such Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Trademarks of the Company have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent of the Company has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. To the knowledge of the Company, there are no potentially conflicting Trademarks or potentially interfering Patents of any third party. (b) Section 3.11(b) of the Disclosure Schedule sets forth a complete and accurate list of all license agreements granting any right to use or practice any rights under any Company Intellectual Property (“Licensed Intellectual Property”), whether the Company is the licensee or licensor thereunder, and any assignments, consents, forbearances to xxx, judgments, orders, settlements or similar obligations relating to any Licensed Intellectual Property to which the Company is a party or otherwise bound (collectively, the “License Agreements“), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the Company and of each other party thereto enforceable in accordance with their respective terms, and neither the Company nor, to the knowledge of the Company, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default or alleged default by the Company or, to the knowledge of the Company, the other party or parties thereto of any of the foregoing. Except as set forth in Section 3.11(b) of the Disclosure Schedule, no consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Related Agreement, or the transactions contemplated hereby or thereby. (c) The Company Intellectual Property constitutes all of the Intellectual Property used in or necessary for the conduct of the Company’s business as currently conducted and proposed to be conducted. (d) No royalties, honoraria or other fees are payable to any third parties for the use of or right to use any Company Intellectual Property except pursuant to the License Agreements set forth in Section 3.11(d) of the Disclosure Schedule. All inventions, discoveries, ideas and works, whether or not patented or patentable or otherwise protectable under law, created, prepared, developed or conceived by employees or independent contractors of the Company are the sole property of the Company and were either created, prepared, developed or conceived by (i) employees of the Company within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to the Company pursuant to enforceable written agreements. (e) The Company owns all Company Intellectual Property purported to be owned by the Company, and has a valid, enforceable, transferable and sufficient right to use for the purposes the Company has previously used, all Company Intellectual Property licensed by the Company, free and clear of all Encumbrances. (f) Neither the use of any of the Company Intellectual Property nor the conduct of the Company’s business does or will, when conducted in substantially the same manner following the Closing, infringe upon, violate, misappropriate or make unlawful use of any Intellectual Property or other rights of any other Person. The Company has not received notice of any allegation that the use of any Company Intellectual Property or the conduct of the Company’s business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the Company, no Person is misappropriating, infringing, violating or making unlawful use of any Company Intellectual Property. There is no Action pending or, to the knowledge of the Company, threatened alleging that the Company’s activities or the conduct of its business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. The Company had not threatened to bring and the Company has not brought any Action regarding the ownership, use, validity or enforceability of any Company Intellectual Property. (g) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Company’s ownership or rights in and to any of the Company Intellectual Property, require the Company to grant to any third party any right to any Company Intellectual Property or obligate the Company to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Company Intellectual Property. (h) Section 3.11(h) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used by the Company. The Company has not sold or licensed any Software to a third party. All Software owned by the Company, and to the knowledge of the Company, all Software licensed from third parties by the Company, is free from any significant software defect or programming or documentation error, operates and runs in a reasonable and efficient business manner, conforms to the specifications thereof, if applicable, and, with respect to the Software owned by the Company, the applications can be compiled from their associated source code without undue burden if the failure to be able to do any one of which could reasonably be expected to have a Material Adverse Effect. None of the Company’s Software (i) is designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any Company Assets (e.g., viruses or worms); (ii) would disable any Company Assets or any computer system or impair in any way their operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks or drop dead devices); (iii) would permit any third party to access any Company Assets or any computer system (e.g., traps, access codes or trap door devices); or (iv) would permit the Company or any third party to track, monitor or otherwise report the operation and use of any Company Assets. The Company has delivered to Parent all required documentation relating to use, maintenance and operation of the Software owned, license or used by the Company. For purposes hereof, “Software” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in human readable form (such as source code programs, macros or scripts) or machine readable form (such as object code), (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (iv) the technology supporting any Internet site(s) operated by or on behalf of Company and (v) all documentation, including user manuals and training materials, relating to any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Alloy Inc)
Intellectual Property; Privacy. (a) Section 3.11(a3.12(a) of the Disclosure Schedule Letter sets forthforth an accurate and complete list, with respect to all as of the date of this Agreement, of (i) each item of Registered Intellectual Property that is Company Intellectual Property, a complete (ii) the jurisdiction in which such item of Registered Intellectual Property has been registered or filed and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and unregistered Trademarks) and registered Copyrights, indicating for each, the applicable jurisdictionapplication, registration number registration, or serial or other similar identification number, and (iii) any Person that has an ownership interest in such item of Registered Intellectual Property and the nature of such ownership interest. Each item of Registered Intellectual Property listed or application numberrequired to be listed on Section 3.12(a) and date issued (or date filed). All registered Trademarks, Patents and registered Copyrights of the Company are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark of the Company has been or Disclosure Letter is now involved in any cancellation proceeding subsisting and, to the knowledge Knowledge of the Company, valid and enforceable.
(b) The Company exclusively owns, free and clear of all Liens (other than Company Permitted Exceptions), all right, title and interest to any Intellectual Property owned or purported to be owned by the Company (the “Company Intellectual Property”) and owns or has a valid license or right to use all other material Intellectual Property used by the Company. The Company owns or otherwise has the right to use all Intellectual Property used in, held for use in or necessary for the conduct of the business of the Company as currently conducted, provided that the foregoing shall not be deemed a representation or warranty regarding non-infringement, validity or enforceability of Intellectual Property. The Company has not received, since January 1, 2018, any written charge, complaint, claim, demand or notice challenging the validity of any Company Intellectual Property. The Company is not bound by, and no material Company Intellectual Property is subject to, any Contract containing any covenant or other provision that materially limits or restricts the ability of the Company to use, assert, enforce or otherwise exploit any material Company Intellectual Property anywhere in the world. The Company has taken commercially reasonable security measures consistent with the industry in which the Company operates to protect the secrecy, confidentiality and value of all material trade secrets included in the Company Intellectual Property.
(c) The conduct of the Business as conducted since January 1, 2018 and as currently conducted does not infringe upon, misappropriate or otherwise violate the Intellectual Property of any other Person, other than for immaterial image take-down requests that have been settled or otherwise fully resolved in the ordinary course of business. The Company has not received, since January 1, 2018, any written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or other violation by the Company that has not been settled or otherwise fully resolved. To the Knowledge of the Company, no other Person is engaging in, or has since January 1, 2018, engaged in, any activity that infringes, misappropriates or otherwise violates the Company Intellectual Property.
(d) The execution, delivery and performance by the Contributor and the Company of the Transaction Agreements to which they are parties and the consummation by the Contributor and the Company of the Transactions, will not, with or without notice or the lapse of time, result in, or give any other Person the right or option to cause or declare, (i) a loss of, or Lien on, any material Company Intellectual Property, (ii) the release, disclosure, or delivery of any material Company Intellectual Property by or to any escrow agent or other Person or (iii) the grant, assignment, or transfer to any other Person of any license or other right or interest under, to, or in any material Company Intellectual Property, including any such Action grant, assignment or transfer by Acquiror or its Affiliates (excluding any such grant, assignment or transfer of any license or other right or interest that arises from any Contract to which Acquiror or any of its Affiliates is threatened a party but neither the Company nor the Contributor is a party).
(e) No funding, facilities, or personnel of any Governmental Authority or any university, college, other educational institution, multi-national, bi-national or international organization, or research center were used, to develop or create, in whole or in part, any Company Intellectual Property. The Company is not a party to any Contract with any Governmental Authority or any university, college, other educational institution, multi-national, bi-national or international organization that grants to such Governmental Authority any right or license with respect to any Company Intellectual Property.
(f) To the Knowledge of the Company, no product or service offered, owned, developed, marketed, licensed, sold, performed, distributed or otherwise made available by the Company (“Company Products”) contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware” or “adware” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing or facilitating, any of the following functions: (i) materially disrupting, disabling, harming, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (ii) materially compromising the privacy or data security of a user or damaging or destroying any data or file without the user’s consent (collectively, “Malicious Code”). The Company implements industry standard measures designed to prevent the introduction of Malicious Code into Company Products, including firewall protections and regular virus scans.
(g) No Company Product is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any Open Source Software license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that (i) would require, or could condition the use or distribution of such Trademarks. All Trademarks Company Product or portion thereof on, (A) the disclosure, licensing, or distribution of any material source code for a Company Product or any portion thereof, (B) the granting to licensees of the right to reverse engineer or make derivative works or other modifications to any Company Products or any portion thereof, (C) licensing or otherwise distributing or making available any Company Product or any portion thereof for a nominal or otherwise limited fee or charge or (D) granting any Intellectual Property Rights to any third party, or (ii) could otherwise impose any material limitation, restriction, or condition on the right or ability of the Company have been in continuous use to use, license distribute or charge for any Company Product or any Intellectual Property therein.
(h) The information technology systems used by the Company (“Company IT Systems”) are implemented, operated and maintained in accordance with customary industry standards and practices for entities operating businesses similar to the business of the Company, including with the respect to redundancy, reliability, scalability and security. Without limiting the foregoing, (i) the Company has taken commercially reasonable steps and implemented commercially reasonable procedures to ensure that the Company IT Systems are free from Malicious Code, and (ii) the Company has in effect industry standard disaster recovery plans, procedures and facilities for their businesses and have taken all reasonable steps to safeguard the security and the integrity of the Company IT Systems. To the Knowledge of the Company, there have been no unauthorized intrusions or breaches of security with respect to the Company IT Systems. The Company has implemented any and all security patches or upgrades that are generally available for the Company IT Systems.
(i) The Company and, to the Knowledge of the Company, any Person acting for or on behalf of the Company are in compliance with and have, since they were first January 1, 2018, complied with, (i) all applicable Laws relating to privacy and data security, (ii) all of the Company’s publicly available policies and notices regarding information that identifies or could be used to identify an individual person or comes within the definition of “personally identifiable information”, “personal data”, “personal information” or any similar term under applicable Laws (“Personal Information”), and (iii) all of the Company’s contractual obligations with respect to Personal Information, except, in the case of (i) through (iii), as would not reasonably be expected to be material to the Business or the Company. Except as would not reasonably be expected to be material to the Business or the Company, (i) the Company and, to the Knowledge of the Company, any Person acting for or on behalf of the Company has, since January 1, 2018, taken or caused to be taken reasonable steps (including implementing and monitoring technical and physical security) to protect the Personal Information and other confidential data owned or controlled by the Company or, to the extent related to the Business as conducted by the Company. To , by the knowledge Contributor or any of its Affiliates, against loss and against unauthorized access, use or disclosure and (ii) since January 1, 2018, to the Knowledge of the Company, there has been no prior use of such Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Trademarks of the Company have been continuously used in the form appearing inunauthorized access to, and in connection with the goods and services listed in, their respective registration certificates theft or identified in their respective pending applications. No Patent of the Company has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. To the knowledge of the Company, there are no potentially conflicting Trademarks or potentially interfering Patents misuse of any third party.
(b) Section 3.11(b) of the Disclosure Schedule sets forth a complete and accurate list of all license agreements granting any right to use Personal Information owned or practice any rights under any Company Intellectual Property (“Licensed Intellectual Property”), whether the Company is the licensee or licensor thereunder, and any assignments, consents, forbearances to xxx, judgments, orders, settlements or similar obligations relating to any Licensed Intellectual Property to which the Company is a party or otherwise bound (collectively, the “License Agreements“), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the Company and of each other party thereto enforceable in accordance with their respective terms, and neither the Company nor, to the knowledge of the Company, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default or alleged default controlled by the Company or, to the knowledge of the Company, the other party or parties thereto of any of the foregoing. Except as set forth in Section 3.11(b) of the Disclosure Schedule, no consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Related Agreement, or the transactions contemplated hereby or thereby.
(c) The Company Intellectual Property constitutes all of the Intellectual Property used in or necessary for the conduct of the Company’s business as currently conducted and proposed to be conducted.
(d) No royalties, honoraria or other fees are payable to any third parties for the use of or right to use any Company Intellectual Property except pursuant extent related to the License Agreements set forth in Section 3.11(d) of the Disclosure Schedule. All inventions, discoveries, ideas and works, whether or not patented or patentable or otherwise protectable under law, created, prepared, developed or conceived by employees or independent contractors of the Company are the sole property of the Company and were either created, prepared, developed or conceived by (i) employees of the Company within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to the Company pursuant to enforceable written agreements.
(e) The Company owns all Company Intellectual Property purported to be owned Business as presently conducted by the Company, and has a valid, enforceable, transferable and sufficient right to use for the purposes the Company has previously used, all Company Intellectual Property licensed by the Company, free and clear of all Encumbrances.
(f) Neither the use of Contributor or any of its Affiliates. Since January 1, 2018, the Company Intellectual Property nor the conduct of the Company’s business does or will, when conducted in substantially the same manner following the Closing, infringe upon, violate, misappropriate or make unlawful use of any Intellectual Property or other rights of any other Person. The Company has not received any written notice of any allegation that claims of, or been charged with, the use violation of any Company Intellectual Property or the conduct of the Company’s business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the Company, no Person is misappropriating, infringing, violating or making unlawful use of any Company Intellectual Property. There is no Action pending or, to the knowledge of the Company, threatened alleging that the Company’s activities or the conduct of its business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. The Company had not threatened to bring and the Company has not brought any Action regarding the ownership, use, validity or enforceability of any Company Intellectual PropertyLaws concerning Personal Information.
(g) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the Company’s ownership or rights in and to any of the Company Intellectual Property, require the Company to grant to any third party any right to any Company Intellectual Property or obligate the Company to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Company Intellectual Property.
(h) Section 3.11(h) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used by the Company. The Company has not sold or licensed any Software to a third party. All Software owned by the Company, and to the knowledge of the Company, all Software licensed from third parties by the Company, is free from any significant software defect or programming or documentation error, operates and runs in a reasonable and efficient business manner, conforms to the specifications thereof, if applicable, and, with respect to the Software owned by the Company, the applications can be compiled from their associated source code without undue burden if the failure to be able to do any one of which could reasonably be expected to have a Material Adverse Effect. None of the Company’s Software (i) is designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any Company Assets (e.g., viruses or worms); (ii) would disable any Company Assets or any computer system or impair in any way their operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks or drop dead devices); (iii) would permit any third party to access any Company Assets or any computer system (e.g., traps, access codes or trap door devices); or (iv) would permit the Company or any third party to track, monitor or otherwise report the operation and use of any Company Assets. The Company has delivered to Parent all required documentation relating to use, maintenance and operation of the Software owned, license or used by the Company. For purposes hereof, “Software” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in human readable form (such as source code programs, macros or scripts) or machine readable form (such as object code), (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (iv) the technology supporting any Internet site(s) operated by or on behalf of Company and (v) all documentation, including user manuals and training materials, relating to any of the foregoing.
Appears in 1 contract
Intellectual Property; Privacy. (a) Section 3.11(a4.10(a) of the Acquiror Disclosure Schedule Letter sets forthforth an accurate and complete list, with respect to all Company as of the date of this Agreement, of (i) each item of Registered Intellectual Property that is Acquiror Intellectual Property, a complete (ii) the jurisdiction in which such item of Registered Intellectual Property has been registered or filed and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and unregistered Trademarks) and registered Copyrights, indicating for each, the applicable jurisdictionapplication, registration number registration, or serial or other similar identification number, and (iii) any Person that has an ownership interest in such item of Registered Intellectual Property and the nature of such ownership interest. Each item of Registered Intellectual Property listed or application numberrequired to be listed on Section 4.10(a) and date issued (or date filed). All registered Trademarks, Patents and registered Copyrights of the Company are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark of the Company has been or Acquiror Disclosure Letter is now involved in any cancellation proceeding subsisting and, to the knowledge Knowledge of the CompanyAcquiror, no such Action is threatened with respect to any of such Trademarks. All Trademarks of the Company have been in continuous use by the Company since they were first used by the Company. To the knowledge of the Company, there has been no prior use of such Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; valid and the registered Trademarks of the Company have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent of the Company has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. To the knowledge of the Company, there are no potentially conflicting Trademarks or potentially interfering Patents of any third partyenforceable.
(b) Section 3.11(b) of the Disclosure Schedule sets forth a complete The Acquiror exclusively owns, free and accurate list clear of all Liens (other than Acquiror Permitted Exceptions), all right, title and interest to any Intellectual Property owned or purported to be owned by the Acquiror (the “Acquiror Intellectual Property”) and owns or has a valid license agreements granting any or right to use or practice any rights under any Company Intellectual Property (“Licensed Intellectual Property”), whether the Company is the licensee or licensor thereunder, and any assignments, consents, forbearances to xxx, judgments, orders, settlements or similar obligations relating to any Licensed Intellectual Property to which the Company is a party or otherwise bound (collectively, the “License Agreements“), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the Company and of each all other party thereto enforceable in accordance with their respective terms, and neither the Company nor, to the knowledge of the Company, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default or alleged default by the Company or, to the knowledge of the Company, the other party or parties thereto of any of the foregoing. Except as set forth in Section 3.11(b) of the Disclosure Schedule, no consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Related Agreement, or the transactions contemplated hereby or thereby.
(c) The Company Intellectual Property constitutes all of the material Intellectual Property used by the Acquiror. The Acquiror owns or otherwise has the right to use all Intellectual Property used in held for use in or necessary for the conduct of the Company’s business of the Acquiror as currently conducted, provided that the foregoing shall not be deemed a representation or warranty regarding non-infringement, validity or enforceability of Intellectual Property. The Acquiror has not received, since January 1, 2018, any written charge, complaint, claim, demand or notice challenging the validity of any Acquiror Intellectual Property. The Acquiror is not bound by, and no material Acquiror Intellectual Property is subject to, any Contract containing any covenant or other provision that materially limits or restricts the ability of the Acquiror to use, assert, enforce or otherwise exploit any material Acquiror Intellectual Property anywhere in the world. The Acquiror has taken commercially reasonable security measures consistent with the industry in which the Acquiror operates to protect the secrecy, confidentiality and value of all material trade secrets included in the Acquiror Intellectual Property.
(c) The conduct of the business of Acquiror as conducted since January 1, 2018 and as currently conducted and proposed to be conducteddoes not infringe upon, misappropriate or otherwise violate the Intellectual Property of any other Person, other than for immaterial image take-down requests that have been settled or otherwise fully resolved in the ordinary course of business. The Acquiror has not received, since January 1, 2018, any written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or other violation by Acquiror that has not been settled or otherwise fully resolved. To the Knowledge of Acquiror, no other Person is engaging in, or has since January 1, 2018, engaged in, any activity that infringes, misappropriates or otherwise violates the Acquiror Intellectual Property.
(d) No royaltiesTo the Knowledge of Acquiror, honoraria no product or other fees are payable to any third parties for the use of or right to use any Company Intellectual Property except pursuant to the License Agreements set forth in Section 3.11(d) of the Disclosure Schedule. All inventionsservice offered, discoveriesowned, ideas and worksdeveloped, whether or not patented or patentable marketed, licensed, sold, performed, distributed or otherwise protectable under lawmade available by the Acquiror (collectively, created“Acquiror Products”) contains any material Malicious Code. The Acquiror implements industry standard measures designed to prevent the introduction of Malicious Code into Acquiror Products, prepared, developed or conceived by employees or independent contractors of the Company are the sole property of the Company including firewall protections and were either created, prepared, developed or conceived by (i) employees of the Company within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to the Company pursuant to enforceable written agreementsregular virus scans.
(e) The Company owns all Company No Acquiror Product is subject to any “copyleft” or other obligation or condition (including any obligation or condition under any Open Source Software license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that (i) would require, or could condition the use or distribution of such Acquiror Product or portion thereof on, (A) the disclosure, licensing, or distribution of any material source code for any Acquiror Product or any portion thereof, (B) the granting to licensees of the right to reverse engineer or make derivative works or other modifications to any Acquiror Product or any portion thereof, (C) licensing or otherwise distributing or making available any Acquiror Product or any portion thereof for a nominal or otherwise limited fee or charge or (D) granting any Intellectual Property purported Rights to be owned by any third party, or (ii) could otherwise impose any material limitation, restriction, or condition on the Companyright or ability of the Acquiror to use, and has a valid, enforceable, transferable and sufficient right to use license distribute or charge for the purposes the Company has previously used, all Company any Acquiror Product or any Intellectual Property licensed by the Company, free and clear of all Encumbrancestherein.
(f) Neither the use No funding, facilities, or personnel of any of the Company Intellectual Property nor the conduct of the Company’s business does Governmental Authority or willany university, when conducted college, other educational institution, multi-national, bi-national or international organization, or research center were used, to develop or create, in substantially the same manner following the Closingwhole or in part, infringe upon, violate, misappropriate or make unlawful use of any Intellectual Property or other rights of any other Person. The Company has not received notice of any allegation that the use of any Company Intellectual Property or the conduct of the Company’s business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the Company, no Person is misappropriating, infringing, violating or making unlawful use of any Company material Acquiror Intellectual Property. There Acquiror is no Action pending ornot a party to any Contract with any Governmental Authority or any university, college, other educational institution, multi-national, bi-national or international organization that grants to the knowledge of the Company, threatened alleging that the Company’s activities such Governmental Authority any right or the conduct of its business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of license with respect to any other Person. The Company had not threatened to bring and the Company has not brought any Action regarding the ownership, use, validity or enforceability of any Company material Acquiror Intellectual Property.
(g) The consummation information technology systems used by the Acquiror (“Acquiror IT Systems”) are implemented, operated and maintained in accordance with customary industry standards and practices for entities operating businesses similar to the business of the transactions contemplated hereby will not result Acquiror, including with respect to redundancy, reliability, scalability and security. Without limiting the foregoing, (i) the Acquiror has taken commercially reasonable steps and implemented commercially reasonable procedures to ensure that the Acquiror IT Systems are free from Malicious Code, and (ii) the Acquiror has in effect industry standard disaster recovery plans, procedures and facilities for their businesses and have taken all reasonable steps to safeguard the loss or impairment security and the integrity of the Company’s ownership or rights in and to any Acquiror IT Systems. To the Knowledge of the Company Intellectual PropertyAcquiror, require the Company to grant to any third party any right to any Company Intellectual Property there have been no unauthorized intrusions or obligate the Company to pay any royalties or other amounts to any third party in excess breaches of any amounts payable to such third parties prior security with respect to the Closing, nor will Acquiror IT Systems. The Acquiror has implemented any and all security patches or upgrades that are generally available for the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Company Intellectual PropertyAcquiror IT Systems.
(h) Section 3.11(hAcquiror and, to the Knowledge of Acquiror, any Person acting for or on behalf of Acquiror are in compliance with and have, since January 1, 2018, complied with, (i) all applicable Laws relating to privacy and data security, (ii) all of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used by the Company. The Company has not sold or licensed any Software to a third party. All Software owned by the CompanyAcquiror’s publicly available policies and notices regarding Personal Information, and to the knowledge (iii) all of the Company, all Software licensed from third parties by the Company, is free from any significant software defect or programming or documentation error, operates and runs in a reasonable and efficient business manner, conforms to the specifications thereof, if applicable, and, Acquiror’s contractual obligations with respect to Personal Information, except, in the Software owned by the Companycase of (i) through (iii), the applications can be compiled from their associated source code without undue burden if the failure to be able to do any one of which could as would not reasonably be expected to have a Material Adverse Effectbe material to Acquiror. None of the Company’s Software Except as would not reasonably be expected to be material to Acquiror, (i) is designed Acquiror and, to disruptthe Knowledge of Acquiror, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any Company Assets (e.g., viruses or worms); (ii) would disable any Company Assets or any computer system or impair in any way their operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks or drop dead devices); (iii) would permit any third party to access any Company Assets or any computer system (e.g., traps, access codes or trap door devices); or (iv) would permit the Company or any third party to track, monitor or otherwise report the operation and use of any Company Assets. The Company has delivered to Parent all required documentation relating to use, maintenance and operation of the Software owned, license or used by the Company. For purposes hereof, “Software” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in human readable form (such as source code programs, macros or scripts) or machine readable form (such as object code), (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (iv) the technology supporting any Internet site(s) operated by Person acting for or on behalf of Company Acquiror has, since January 1, 2018, taken or caused to be taken reasonable steps (including implementing and monitoring technical and physical security) to protect the Personal Information and other confidential data owned or controlled by the Acquiror or, to the extent related to the business as conducted by Acquiror or any of its Affiliates, against loss and against unauthorized access, use or disclosure and (vii) all documentationsince January 1, including user manuals and training materials2018, relating to the Knowledge of the Acquiror, there has been no unauthorized access to, theft or misuse of any Personal Information owned or controlled by Acquiror or, to the extent related to the Acquiror’s business as presently conducted by Acquiror or any of its Affiliates. Since January 1, 2018, Acquiror has not received any written notice of any claims of, or been charged with, the foregoingviolation of any laws concerning Personal Information.
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Intellectual Property; Privacy. (a) Section 3.11(a3.12(a) of the Disclosure Schedule sets forth, with respect to all Company Business Intellectual Property, a complete and accurate list of all United States and foreign Patents, Trademarks (including Internet domain name registrations and unregistered registered and applied for Trademarks) and registered Copyrights, indicating for each, the applicable jurisdiction, registration number (or application number) and date issued (or date filed). All registered and applied for Trademarks, Patents and registered Copyrights of the Company each Seller are currently in compliance with all legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications with respect to Trademarks, and the payment of filing, examination and maintenance fees and proof of working or use with respect to Patents), are valid and enforceable, and are not subject to any maintenance fees or actions falling due within one hundred eighty (180) days after the Closing Date. No Trademark of included in the Company Business Intellectual Property (“Acquired Trademarks”) has been or is now involved in any cancellation proceeding and, to the knowledge of the CompanySellers, no such Action is threatened with respect to any of such Acquired Trademarks. All Acquired Trademarks of the Company have been in continuous use by the Company Sellers since they were first used by the CompanySellers. To the knowledge of the CompanySellers, there has been no prior use of such Acquired Trademarks by any Person which would confer upon such Person superior rights in such Trademarks; and the registered Acquired Trademarks of the Company have been continuously used in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates or identified in their respective pending applications. No Patent of included in the Company Business Intellectual Property has been or is now involved in any litigation, interference, reissue, re-examination or opposing proceeding. No Copyright registration or Copyrightable work included in the Business Intellectual Property has been or is now involved in any Action. To the knowledge of the CompanySellers, there are no potentially conflicting Trademarks or potentially interfering Patents of any third party.
(b) Section 3.11(b3.12(b) of the Disclosure Schedule sets forth a complete and accurate list of all license agreements granting any right to use or practice any rights under any Company Business Intellectual Property (“Licensed Intellectual Property”), whether the Company a Seller is the licensee or licensor thereunder, and any assignments, consents, forbearances to xxx, judgments, orders, settlements settlements, indemnification or similar obligations relating to any Licensed Intellectual Property to which the Company a Seller is a party or otherwise bound (collectively, the “License Agreements“”), indicating for each the title, the parties, date executed, whether or not it is exclusive and the Licensed Intellectual Property covered thereby. The License Agreements are valid and binding obligations of the Company and applicable Seller party thereto and, to the knowledge of the Sellers, of each other party thereto enforceable in accordance with their respective terms, and neither the Company such Seller nor, to the knowledge of the CompanySellers, the other party or parties thereto is or are in default thereunder and there exists no event, condition or occurrence which (with or without due notice or lapse of time, or both) would constitute such a default or alleged default by the Company Sellers or, to the knowledge of the CompanySellers, the other party or parties thereto of any of the foregoing. Except as set forth in Section 3.11(b) of the Disclosure Schedule, no No consent of, or notice to, any Person is required under any License Agreement as a result of or in connection with, and the terms or enforceability of any License Agreement will not be affected in any manner by, the execution, delivery and performance of this Agreement or any Related AgreementTransaction Document, or the transactions contemplated hereby or thereby.
(c) The Company Business Intellectual Property constitutes all of the Intellectual Property (other than the Intellectual Property that constitute Sellers’ Assets) used in or necessary for the conduct of the Company’s business Business as currently conducted and proposed to be conducted.
(d) No royalties, honoraria or other fees are payable to any third parties for the use of or right to use any Company Business Intellectual Property except pursuant to the License Agreements set forth in Section 3.11(d3.12(d) of the Disclosure Schedule. All inventions, discoveries, trade secrets, ideas and works, whether or not patented or patentable or otherwise protectable under lawLaw, created, prepared, developed or conceived by employees or independent contractors of a Seller in connection with the Company operation of the Business and material to the operation of the Business are the sole property of the Company such Seller and were either created, prepared, developed or conceived by (i) employees of the Company such Seller within the scope of their employment or (ii) by independent contractors who have duly assigned their rights to the Company such Seller pursuant to enforceable written agreements.
(e) The Company Each Seller owns all Company Business Intellectual Property purported to be owned by the Companysuch Seller, and has a valid, enforceable, transferable and sufficient right to use for the purposes the Company such Seller has previously used, all Company the Business Intellectual Property licensed or otherwise used by the Companysuch Seller, free and clear of all EncumbrancesLiens.
(f) Neither the The use of any of the Company Business Intellectual Property nor by Sellers as currently used in the conduct of the Company’s business Business does or will, when conducted in substantially the same manner following the Closing, not infringe upon, violate, misappropriate or make unlawful use of any Intellectual Property or other rights of any other Person. The Company Neither Seller has not received notice of any allegation that the use of any Company Business Intellectual Property or the conduct of the Company’s business Business infringes upon, violates, misappropriates or makes unlawful use of any Intellectual Property or other rights of any other Person. To the knowledge of the CompanySellers, no Person is misappropriating, infringing, violating or making unlawful use of any Company Business Intellectual Property. There is no Action pending or, to the knowledge of the CompanySellers, threatened alleging that the Company’s either Sellers’ activities or the conduct of its business the Business infringes upon, violates or constitutes the unauthorized use of the Intellectual Property or other rights of any other Person. The Company had not Neither Seller has threatened to bring and the Company neither Seller has not brought any Action regarding the ownership, use, validity or enforceability of any Company Business Intellectual Property.
(g) Section 3.12(g) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used in connection with the operation of the Business (“Acquired Business Software”) and indicates whether the software is subject to an escrow agreement and, if so, indicates where the Software is held in escrow. Neither Seller has sold or licensed any Acquired Business Software to a third party. To the knowledge of the Seller, none of the Acquired Business Software (i) is designed to intentionally disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any computer system (e.g., viruses or worms), (ii) would disable any computer system or impair in any way its operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks, or drop dead devices) or (iii) would permit any Person to access any computer system (e.g., traps, access codes, or trap door devices). The Sellers have delivered to the Buyer all documentation relating to use, maintenance and operation of the Acquired Business Software held by the Sellers.
(h) The Sellers have taken all reasonable steps in accordance with normal industry practice to protect the Business Intellectual Property, including the Sellers’ rights in confidential information and Trade Secrets included in the Business Intellectual Property. True and complete copies of proprietary information, confidential and assignment agreements that Sellers have from persons employed in or contracted with, in connection with the conduct of the Business, have been delivered or made available to the Buyer (collectively, the “Proprietary Information Agreements”) and, to the knowledge of the Sellers, no such person is in breach or violation of any such agreement. To the knowledge of the Sellers, except pursuant to enforceable confidentiality obligations in favor of the Sellers, there has been no disclosure of any the confidential information or Trade Secrets included in the Business Intellectual Property. To the knowledge of the Sellers, no current or former employee, consultant, contractor or potential partner or investor of either Seller is in unauthorized possession of any of the Trade Secrets or Software included in the Business Intellectual Property.
(i) Section 3.12(j) of the Disclosure Schedule describes all databases used by either Seller in connection with the operation of either Acquired Business (the “Databases”). At the Closing, the Databases will have at least the same information and functionality as exists prior to the Closing. No Person has any right, title or interest in or to any of the information contained in any of the Databases and neither Seller has sold, assigned, leased, transferred, permitted the use of or otherwise disclosed to any Person any information contained in any of the Databases, including any Personally Identifiable Information, except in compliance in all material respects with applicable law. The Sellers have complied and are in compliance in material respects in with all applicable privacy Laws in connection with the operation of the Business and all information contained in the Databases has been collected, used and maintained in all material respects in accordance with all applicable privacy Laws. The Sellers have the right to sell and assign all of its rights in and to the Databases and all information contained therein to the Buyer (and its successors and assigns), and any such sale and assignment will not violate any privacy policy applicable to any Personally Identifiable Information contained therein at the time it was collected.
(j) The consummation of the transactions contemplated hereby will not result in the loss or impairment of the CompanyBuyer’s ownership or rights in and to any of the Company Acquired Business Intellectual Property, require the Company Buyer to grant to any third party any right to any Company Acquired Business Intellectual Property or obligate the Company Buyer to pay any royalties or other amounts to any third party in excess of any amounts payable to such third parties prior to the Closing, nor will the consummation of the transactions contemplated hereby require the approval or consent of any Governmental Authority or other Person in respect of any Company Acquired Business Intellectual Property.
(h) Section 3.11(h) of the Disclosure Schedule lists all Software which is owned, licensed or otherwise used by the Company. The Company has not sold or licensed any Software to a third party. All Software owned by the Company, and to the knowledge of the Company, all Software licensed from third parties by the Company, is free from any significant software defect or programming or documentation error, operates and runs in a reasonable and efficient business manner, conforms to the specifications thereof, if applicable, and, with respect to the Software owned by the Company, the applications can be compiled from their associated source code without undue burden if the failure to be able to do any one of which could reasonably be expected to have a Material Adverse Effect. None of the Company’s Software (i) is designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of any Company Assets (e.g., viruses or worms); (ii) would disable any Company Assets or any computer system or impair in any way their operation based on the elapsing of a period of time, the exceeding of an authorized number of copies or the advancement to a particular date or other numeral (e.g., time bombs, time locks or drop dead devices); (iii) would permit any third party to access any Company Assets or any computer system (e.g., traps, access codes or trap door devices); or (iv) would permit the Company or any third party to track, monitor or otherwise report the operation and use of any Company Assets. The Company has delivered to Parent all required documentation relating to use, maintenance and operation of the Software owned, license or used by the Company. For purposes hereof, “Software” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in human readable form (such as source code programs, macros or scripts) or machine readable form (such as object code), (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (iv) the technology supporting any Internet site(s) operated by or on behalf of Company and (v) all documentation, including user manuals and training materials, relating to any of the foregoing.
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