Common use of Intellectual Property; Software Clause in Contracts

Intellectual Property; Software. (a) Except as set forth in Section 3.13(a) of the Disclosure Schedule or as otherwise would not have a Company Material Adverse Effect, the Company or one of the Subsidiaries is the owner of (free and clear of all liens, encumbrances and other restrictions), or is a licensee under a valid written license for, all items of intangible property, including, without limitation, copyrights, trademarks and service marks (whether or not registered or applied for registration), domain names, trade names, logos, trade dress, brand names, patents, patent applications, inventions (whether or not patentable and whether or not reduced to practice), trade secrets and copyrights (whether or not registered or applied for registration) and all registrations, applications and renewals for, and goodwill associated with any of the foregoing; and all trade secrets, confidential information, ideas, formulae, compositions, know-how, technical and computer data, documentation and software, financial, business and marketing plans and materials, customer and supplier lists and related information and all other proprietary rights (collectively, the "Intellectual Property"), which are used in the operation of the business of the Company and the Subsidiaries as currently conducted. There are no claims pending or, to the Company's or any Subsidiary's knowledge, threatened, that the Company or any of the Subsidiaries is in violation of any intangible property rights of any third party or contesting the validity, enforceability, use or ownership of any of the Intellectual Property owned or used by the Company or any Subsidiary, and to the Company's or any Subsidiary's knowledge, there are not grounds for the same. To the Company's or any Subsidiary's knowledge, no third party has interfered with, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights owned or used by the Company or any Subsidiary. The Company and each Subsidiary has taken what it believes, based on its reasonable business judgment, to be reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. All payments, including maintenance fees, for all Intellectual Property filings and registrations and pending and issued patents have been made through the date hereof with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. All Intellectual Property owned or used by the Company or any of the Subsidiaries immediately prior to the Effective Time will be owned or available for use by the Surviving Corporation and the Subsidiaries on substantially identical terms and conditions immediately subsequent to the Effective Time, except as would not have a Company Material Adverse Effect.

Intellectual Property; Software. (a) Except as set forth ------------------------------- in Section 3.13(a) of the Disclosure Schedule or as otherwise would not have a Company Material Adverse Effect, the Company or one of the Subsidiaries is the owner of (free and clear of all liens, encumbrances and other restrictions), or is a licensee under a valid written license for, all items of intangible property, including, without limitation, copyrights, trademarks and service marks (whether or not registered or applied for registration), domain names, trade names, logos, trade dress, brand names, patents, patent applications, inventions (whether or not patentable and whether or not reduced to practice), trade secrets and copyrights (whether or not registered or applied for registration) and all registrations, applications and renewals for, and goodwill associated with any of the foregoing; and all trade secrets, confidential information, ideas, formulae, compositions, know-how, technical and computer data, documentation and software, financial, business and marketing plans and materials, customer and supplier lists and related information and all other proprietary rights (collectively, the "Intellectual Property"), which are used in the operation of the business of the Company and the Subsidiaries as currently conducted. There are no claims pending or, to the Company's or any Subsidiary's knowledge, threatened, that the Company or any of the Subsidiaries is in violation of any intangible property rights of any third party or contesting the validity, enforceability, use or ownership of any of the Intellectual Property owned or used by the Company or any Subsidiary, and to the Company's or any Subsidiary's knowledge, there are not grounds for the same. To the Company's or any Subsidiary's knowledge, no third party has interfered with, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights owned or used by the Company or any Subsidiary. The Company and each Subsidiary has taken what it believes, based on its reasonable business judgment, to be reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. All payments, including maintenance fees, for all Intellectual Property filings and registrations and pending and issued patents have been made through the date hereof with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. All Intellectual Property owned or used by the Company or any of the Subsidiaries immediately prior to the Effective Time will be owned or available for use by the Surviving Corporation and the Subsidiaries on substantially identical terms and conditions immediately subsequent to the Effective Time, except as would not have a Company Material Adverse Effect.

Intellectual Property; Software. (ai) Except as set forth The Company and its Subsidiaries own or possess adequate rights or licenses to use all Intellectual Property necessary to the conduct of their respective businesses and such Intellectual Property rights and licenses are perpetual, transferable without any limitation and require no royalty or other payments in Section 3.13(a) connection therewith, and, to the knowledge of the Disclosure Schedule Company, such Intellectual Property represents all material intellectual property rights necessary to the conduct of the their business as now conducted and as presently contemplated to be conducted. There are no conflicts with or as otherwise would infringements of any Intellectual Property owned by the Company or any of its Subsidiaries by any third party, except for such infringements and conflicts which could not reasonably be expected to have a Company Material Adverse Effect, the Company or one of the Subsidiaries is the owner of (free and clear of all liens, encumbrances and other restrictions), or is a licensee under a valid written license for, all items of intangible property, including, without limitation, copyrights, trademarks and service marks (whether or not registered or applied for registration), domain names, trade names, logos, trade dress, brand names, patents, patent applications, inventions (whether or not patentable and whether or not reduced to practice), trade secrets and copyrights (whether or not registered or applied for registration) and all registrations, applications and renewals for, and goodwill associated with any of the foregoing; and all trade secrets, confidential information, ideas, formulae, compositions, know-how, technical and computer data, documentation and software, financial, business and marketing plans and materials, customer and supplier lists and related information and all other proprietary rights (collectively, the "Intellectual Property"), which are used in the operation . The conduct of the business of the Company and the its Subsidiaries as currently conductedconducted or contemplated to be conducted does not conflict with or infringe any proprietary right or Intellectual Property of any third party, including, without limitation, the transmission, reproduction, use, display or modification of any content or material (including framing, and linking web site content) on a web site, bulletin board or other like medium hosted by or on behalf of the Company or any of its Subsidiaries, except for such infringements and conflicts which could not reasonably be expected to have a Material Adverse Effect. There are is no claims claim, suit, action or proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary: (i) alleging any such conflict or infringement with any third party's proprietary rights; or (ii) challenging the Company's or any Subsidiary's knowledgeownership or use of, threatened, that or the Company validity or any of the Subsidiaries is in violation enforceability of any intangible property rights of any third party or contesting the validity, enforceability, use or ownership of any of the Intellectual Property owned or used by the Company or any Subsidiary, and to Property. The total revenue derived from the Company's or any Subsidiary's knowledge, there are not grounds for the same. To and its Subsidiaries' line of SmartFax Plus and SmartFax Pro products and services is less than two and one-half percent (2.5%) of the Company's or any Subsidiary's knowledgeand its Subsidiaries combined total revenue between January 1, no third party has interfered with2010 and May 31, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights owned or used by the Company or any Subsidiary. The Company and each Subsidiary has taken what it believes, based on its reasonable business judgment, to be reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. All payments, including maintenance fees, for all Intellectual Property filings and registrations and pending and issued patents have been made through the date hereof with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. All Intellectual Property owned or used by the Company or any of the Subsidiaries immediately prior to the Effective Time will be owned or available for use by the Surviving Corporation and the Subsidiaries on substantially identical terms and conditions immediately subsequent to the Effective Time, except as would not have a Company Material Adverse Effect2010.

Intellectual Property; Software. (a) Except as set forth in Section 3.13(a) of To the Disclosure Schedule or as otherwise would not have a Company Material Adverse EffectCompany's knowledge, the Company or one of the its Subsidiaries is the owner of (free and clear of all liens, encumbrances liens and other restrictionsencumbrances), has sufficient and valid rights to use or is a licensee under a valid written license that has been disclosed to Buyer and Merger Sub for, all items of intangible property, including, without limitation, copyrights, trademarks and service marks (whether or not registered or applied for registration), domain namesname, trade names, logos, trade dress, brand names, patents, patent applications, inventions (whether or not patentable and whether or not reduced to practicepatented), trade secrets and copyrights (whether or not registered or applied for registration) and all registrations, applications and renewals for, and goodwill associated with any of the foregoing; and all trade secrets, confidential information, ideas, formulae, compositions, know-how, technical and computer data, documentation and software, financial, business and marketing plans and materials, customer and supplier lists and related information and all other proprietary rights (collectively, the "Intellectual PropertyINTELLECTUAL PROPERTY"), which individually or in the aggregate are used in necessary for the operation of the business of the Company and the any of its Subsidiaries as currently conducted, except for any such Intellectual Property the loss of which would not reasonably be expected to cause a Material Adverse Effect on the Company. There Except as would not reasonably be expected to have a Material Adverse Effect on the Company, there are no claims pending or, to the Company's or any Subsidiaryof its Subsidiaries's knowledge, threatened, that the Company or any of the its Subsidiaries is in violation of any intangible property rights of any third party or contesting the validity, enforceability, use or ownership of any of the Intellectual Property owned or used by the Company or any Subsidiary, and party. Except as would not reasonably be expected to have a Material Adverse Effect on the Company's or any Subsidiary's knowledge, there are not grounds for the same. To the Company's or any Subsidiary's knowledge, no third party has interfered with, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights owned or used by of the Company or any Subsidiaryof its Subsidiaries. The Company and each Subsidiary of its Subsidiaries has taken what it believes, based on its reasonable business judgment, to be reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. All Except as would not reasonably be expected to have a Material Adverse Effect on the Company, all payments, including maintenance fees, for and all Intellectual Property filings and registrations and pending and issued patents have been made through the date hereof with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. All Except as would not reasonably be expected to have a Material Adverse Effect on the Company, all Intellectual Property owned or used by the Company or any of the its Subsidiaries immediately prior to the Effective Time will be owned or as available for use by the Surviving Corporation and the its Subsidiaries on substantially identical terms and conditions immediately subsequent to the Effective Time, except as would not have a Company Material Adverse Effect.

Intellectual Property; Software. (a) SCHEDULE 2.21(A) to the Disclosure Letter sets forth a true and complete list of all copyrights, trade names, trademarks, service marks or patents (or applications therefor) which are used by any of the Companies in their respective businesses, indicating as to each whether such Company is a licensee or licensor and the jurisdictions where each is registered (if any). Each Company has good title to or possesses adequate licenses or other valid rights to use all Intellectual Property used by such Company in its business or necessary to conduct its business ("COMPANY IP"), free and clear of all Liens, and has paid all maintenance fees, renewals or expenses related to such Intellectual Property. To the Knowledge of the Shareholders and subject to the disclaimer set forth in SCHEDULE 2.21(A) to the Disclosure Letter, neither the use of such Intellectual Property nor the conduct of the Companies' businesses in accordance with each such entity's past practice, misappropriates, infringes upon or conflicts with any Intellectual Property of any third party. Except as set forth in Section 3.13(aSCHEDULE 2.21(A) of to the Disclosure Schedule or as otherwise would not have Letter, no party has filed a Company Material Adverse Effect, the Company or one of the Subsidiaries is the owner of claim (free and clear of all liens, encumbrances and other restrictions), or is a licensee under a valid written license for, all items of intangible property, including, without limitation, copyrights, trademarks and service marks (whether or not registered or applied for registration), domain names, trade names, logos, trade dress, brand names, patents, patent applications, inventions (whether or not patentable and whether or not reduced to practice), trade secrets and copyrights (whether or not registered or applied for registration) and all registrations, applications and renewals for, and goodwill associated with any of the foregoing; and all trade secrets, confidential information, ideas, formulae, compositions, know-how, technical and computer data, documentation and software, financial, business and marketing plans and materials, customer and supplier lists and related information and all other proprietary rights (collectively, the "Intellectual Property"), which are used in the operation of the business of the Company and the Subsidiaries as currently conducted. There are no claims pending or, to the Company's Knowledge of the Shareholders, threatened to file a claim) against any Company alleging that it has violated, infringed on or otherwise improperly used the Intellectual Property of a third party, and none of the Companies has violated or infringed any Subsidiary's knowledgepatent, trademark, trade name, service xxxx, service name, copyright or trade secret held by a third party. No order, decree, judgment, temporary restraining order or preliminary or permanent injunction has been rendered by any Governmental Entity, and no Action is pending, or, to the Knowledge of the Shareholders, threatened, that that, in any such case, limits or challenges the Company ownership, use, validity or any of the Subsidiaries is in violation enforceability of any intangible property rights of any third party or contesting the validity, enforceability, use or ownership of any of the Intellectual Property owned or used by the Company or any Subsidiary, and to the Company's or any Subsidiary's knowledge, there are not grounds for the same. To the Company's or any Subsidiary's knowledge, no third party has interfered with, infringed upon, misappropriated, or violated in any material respect any Intellectual Property rights owned or used by the Company or any Subsidiary. The Company and each Subsidiary has taken what it believes, based on its reasonable business judgment, to be reasonable security measures to protect the secrecy, confidentiality and value of the Intellectual Property. All payments, including maintenance fees, for all Intellectual Property filings and registrations and pending and issued patents have been made through the date hereof with respect to the Intellectual Property so as to maintain the Intellectual Property in full force and effect. All Intellectual Property owned or used by the Company or any of the Subsidiaries immediately prior to the Effective Time will be owned or available for use by the Surviving Corporation and the Subsidiaries on substantially identical terms and conditions immediately subsequent to the Effective Time, except as would not have a Company Material Adverse EffectIP.