Common use of Intellectual Property; Software Clause in Contracts

Intellectual Property; Software. (a) Schedule 4.13(a) sets forth a true and complete list of all registered Patents, Copyrights, Trademarks, service marks and domain registrations, including any pending applications to register any of the foregoing, owned (in whole or in part) by the Company as of the date hereof (collectively, “Company Registered IP”). All Company Registered IP (other than patent applications or applications to register Trademarks or Copyrights) is subsisting and, to the Knowledge of the Company, valid and enforceable, and neither the Company nor any Seller has received any written notice or claim challenging the validity or enforceability of any Company Registered IP. The Company has not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation or forfeiture of any of the Company Registered IP, except for any issuances, registrations or applications for any Company Registered IP that the Company has permitted to expire or has cancelled or abandoned in its reasonable business judgment. No Company Registered IP is involved, or has been involved within the three years immediately prior to the date of this Agreement, in any interference, reissue, reexamination, opposition, cancellation or other post-grant proceeding before the U.S. Patent and Trademark Office or similar office in any other jurisdiction, and, to the Knowledge of the Company, no such action is or has been threatened in writing with respect to any of the Company Registered IP. (b) The Company exclusively owns, free and clear of any and all Encumbrances except for Permitted Encumbrances, all Company Registered IP (other than Company Registered IP identified on Schedule 4.13(a) as jointly owned by the Company). The Company has the right to use all Intellectual Property used in the Business. The Company has not received any written notice or claim challenging the Company’s ownership of any of the Intellectual Property owned (in whole or in part) by the Company that is material to the conduct of the Business. (c) The Company has taken commercially reasonable steps to maintain the confidentiality of all information that constitutes a material Trade Secret of the Company. All current and former employees, consultants and contractors of the Company who created or are responsible for the protection of the Company’s material Trade Secrets have executed and delivered non-disclosure and invention assignment agreements, substantially similar forms of which have heretofore been delivered to Purchaser. The Company has not disclosed, and has no obligation to disclose, to any other Person any Trade Secrets of the Company, except pursuant to a confidentiality agreement or undertaking, and, to the Knowledge of the Company, no such Person has materially breached any such agreement or undertaking. (d) The conduct by the Company of the Business has not, within the three years immediately prior to the date of this Agreement, infringed upon, misappropriated, violated, diluted or constituted the unauthorized use of any Intellectual Property of any third party (including any rights of publicity or privacy relating to the use of names, likenesses, voices, signatures or biographical information of any other Person). The Company has not, within the three years immediately prior to the date of this Agreement, received any written notice or claim asserting that any such infringement, misappropriation, violation, dilution or unauthorized use is or may be occurring or has or may have occurred. No Intellectual Property owned by the Company, and to the Knowledge of the Company, no Intellectual Property licensed to the Company, is subject to any outstanding order, judgment, decree or stipulation restricting the use or licensing thereof by the Company. To the Knowledge of the Company, no third party is misappropriating, infringing, diluting or violating any Intellectual Property owned by or exclusively licensed to the Company in a material respect. (e) Schedule 4.13(e)(1) sets forth a complete and accurate list of all agreements granting the Company any right under or with respect to any Intellectual Property owned by a third party that is material to the conduct of the Business as of the date hereof (collectively, the “Inbound License Agreements”), other than commercially available standard Software that is licensed for a license fee of no more than $250,000 per license, indicating for each the title and the parties thereto. Schedule 4.13(e)(2) sets forth a complete and accurate list of all license agreements under which the Company grants any rights under any Intellectual Property that is material to the conduct of the Business, excluding non-exclusive licenses granted by the Company in the Ordinary Course of Business as of the date hereof (collectively, “Outbound License Agreements”). (f) Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, assuming all required Consents of third parties are obtained, will (i) cause the forfeiture or termination of or give rise to a right of forfeiture or termination of, or result in any other material modification of any kind to, the Company’s right to use any Intellectual Property rights used in the conduct of the Business as currently conducted or (ii) materially impair the right of Purchaser to use, make, market, license, sell, copy, distribute, commercially exploit or dispose of any material Intellectual Property owned by or licensed to the Company. (g) All of the material Software owned by the Company was (i) developed by employees of the Company within the scope of their employment, (ii) developed by independent contractors who have expressly assigned their rights therein to the Company pursuant to written agreements or (iii) otherwise acquired by the Company from a third party pursuant to a written agreement in which the ownership rights therein were expressly assigned to the Company. No Software owned by the Company is intermingled or integrated with any code that is licensed pursuant to the provisions of any “open source” license agreement, including GNU’s General Public License or Lesser/Library GPL in a manner that would require that the source code for such Company-owned Software be distributed or made available in connection with the distribution of the licensed Software in object code form or that limits the amount of fees that may be charged in connection with sublicensing or distributing such Software. (h) No source code of any material computer Software owned by the Company has been licensed or otherwise provided to another Person other than an escrow agent pursuant to the terms of a source code escrow agreement in customary form. The Company has used commercially reasonable efforts to safeguard and protect such source code as a Trade Secret of the Company. The Company has taken commercially reasonable steps to ensure that all Software used by the Company is free of any disabling codes or instructions, and any virus or other intentionally created, undocumented contaminant, that is intended to be used to, access, modify, delete, damage or disable any of internal computer systems (including hardware, Software, databases and embedded control systems) of the Company. The Company has taken commercially reasonable steps to safeguard such systems and restrict unauthorized access thereto. The Company has implemented commercially reasonable measures to ensure the physical and electronic protection of its material Confidential Information from unauthorized disclosure, use or modification. To the knowledge of the Company, there have been no material breaches of the Company’s security measures in the three years immediately prior to this Agreement. (i) The Company (i) has taken commercially reasonable measures, directly or indirectly, to ensure the security of all personally identifiable information collected, maintained and used by the Company relating to users of its websites, including summaries, reports and aggregate data based thereon (collectively, “Personal Data”) and (ii) has complied in all material respects with applicable data protection, privacy and similar Law relating to Personal Data and its publicly available privacy policies. True, correct and complete copies of all privacy policies of the Company in effect at any time in the three years prior to the date of this Agreement, including the privacy policies included in the Company’s websites, have previously been provided to Purchaser. The Company has taken all commercially reasonable steps necessary to protect the Personal Data in its possession against loss and against unauthorized access, use, modification, disclosure or other misuse. To the Knowledge of the Company, there has been no unauthorized access to or other misuse of such Personal Data in the three years immediately prior to the date of this Agreement. In the three years immediately prior to the date of this Agreement, no claims have been asserted or, to the Knowledge of the Company, threatened in writing against the Company by any Person alleging a violation of such Person’s privacy rights under any applicable Law or the Company’s publicly available privacy policies. The execution of this Agreement and the Company Ancillary Agreements and the consummation of the Contemplated Transactions will not materially breach or otherwise cause any material violation of any Law related to privacy, data protection or the collection and use of Personal Data gathered or accessed in the course of the operations of the Business. (j) Any other representation or warranty contained in this Article IV notwithstanding, the representations and warranties contained in this Section 4.13 constitute the sole representations and warranties of the Company relating to intellectual property and software.

Intellectual Property; Software. (a) Schedule 4.13(a) sets forth a true and complete list of all registered Patents, Copyrights, Trademarks, service marks and domain registrations, including any pending applications to register any of the foregoing, owned (in whole or in part) by the Company as of the date hereof (collectively, “Company Registered IP”). All Company Registered IP (other than patent applications or applications to register Trademarks or Copyrights) is subsisting and, to the Knowledge of the Company, valid and enforceable, and neither the Company nor any Seller has received any written notice or claim challenging the validity or enforceability of any Company Registered IP. The Company has not taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation or forfeiture of any of the Company Registered IP, except for any issuances, registrations or applications for any Company Registered IP that the Company has permitted to expire or has cancelled or abandoned in its reasonable business judgment. No Company Registered IP is involved, or has been involved within the three years immediately prior to the date of this Agreement, in any interference, reissue, reexamination, opposition, cancellation or other post-grant proceeding before the U.S. Patent and Trademark Office or similar office in any other jurisdiction, and, to the Knowledge of the Company, no such action is or has been threatened in writing with respect to any of the Company Registered IP. (b) The Company exclusively owns, free and clear of any and all Encumbrances except for Permitted Encumbrances, all Company Registered IP (other than Company Registered IP identified on Schedule 4.13(a) as jointly owned by the Company). The Company has the right to use all Intellectual Property used in the Business. The Company has not received any written notice or claim challenging the Company’s ownership of any of the Intellectual Property owned (in whole or in part) by the Company that is material to the conduct of the Business. (c) The Company has taken commercially reasonable steps to maintain the confidentiality of all information that constitutes a material Trade Secret of the Company. All current and former employees, consultants and contractors of the Company who created or are responsible for the protection of the Company’s material Trade Secrets have executed and delivered non-disclosure and invention assignment agreements, substantially similar forms of which have heretofore been delivered to Purchaser. The Company has not disclosed, and has no obligation to disclose, to any other Person any Trade Secrets of the Company, except pursuant to a confidentiality agreement or undertaking, and, to the Knowledge of the Company, no such Person has materially breached any such agreement or undertaking. (d) The conduct by the Company of the Business has not, within the three years immediately prior to the date of this Agreement, infringed upon, misappropriated, violated, diluted or constituted the unauthorized use of any Intellectual Property of any third party (including any rights of publicity or privacy relating to the use of names, likenesses, voices, - 24 - signatures or biographical information of any other Person). The Company has not, within the three years immediately prior to the date of this Agreement, received any written notice or claim asserting that any such infringement, misappropriation, violation, dilution or unauthorized use is or may be occurring or has or may have occurred. No Intellectual Property owned by the Company, and to the Knowledge of the Company, no Intellectual Property licensed to the Company, is subject to any outstanding order, judgment, decree or stipulation restricting the use or licensing thereof by the Company. To the Knowledge of the Company, no third party is misappropriating, infringing, diluting or violating any Intellectual Property owned by or exclusively licensed to the Company in a material respect. . (e) Schedule 4.13(e)(1) sets forth a complete and accurate list of all agreements granting the Company any right under or with respect to any Intellectual Property owned by a third party that is material to the conduct of the Business as of the date hereof (collectively, the “Inbound License Agreements”), other than commercially available standard Software that is licensed for a license fee of no more than $250,000 per license, indicating for each the title and the parties thereto. Schedule 4.13(e)(2) sets forth a complete and accurate list of all license agreements under which the Company grants any rights under any Intellectual Property that is material to the conduct of the Business, excluding non-exclusive licenses granted by the Company in the Ordinary Course of Business as of the date hereof (collectively, “Outbound License Agreements”). (f) Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, assuming all required Consents of third parties are obtained, will (i) cause the forfeiture or termination of or give rise to a right of forfeiture or termination of, or result in any other material modification of any kind to, the Company’s right to use any Intellectual Property rights used in the conduct of the Business as currently conducted or (ii) materially impair the right of Purchaser to use, make, market, license, sell, copy, distribute, commercially exploit or dispose of any material Intellectual Property owned by or licensed to the Company. (g) All of the material Software owned by the Company was (i) developed by employees of the Company within the scope of their employment, (ii) developed by independent contractors who have expressly assigned their rights therein to the Company pursuant to written agreements or (iii) otherwise acquired by the Company from a third party pursuant to a written agreement in which the ownership rights therein were expressly assigned to the Company. No Software owned by the Company is intermingled or integrated with any code that is licensed pursuant to the provisions of any “open source” license agreement, including GNU’s General Public License or Lesser/Library GPL in a manner that would require that the source code for such Company-owned Software be distributed or made available in connection with the distribution of the licensed Software in object code form or that limits the amount of fees that may be charged in connection with sublicensing or distributing such Software. (h) No source code of any material computer Software owned by the Company has been licensed or otherwise provided to another Person other than an escrow agent pursuant to the terms of a source code escrow agreement in customary form. The Company has used commercially reasonable efforts to safeguard and protect such source code as a Trade Secret of the Company. The Company has taken commercially reasonable steps to ensure that all Software used by the Company is free of any disabling codes or instructions, and any virus or other intentionally created, undocumented contaminant, that is intended to be used to, access, modify, delete, damage or disable any of internal computer systems (including hardware, Software, databases and embedded control systems) of the Company. The Company has taken commercially reasonable steps to safeguard such systems and restrict unauthorized access thereto. The Company has implemented commercially reasonable measures to ensure the physical and electronic protection of its material Confidential Information from unauthorized disclosure, use or modification. To the knowledge of the Company, there have been no material breaches of the Company’s security measures in the three years immediately prior to this Agreement. (i) The Company (i) has taken commercially reasonable measures, directly or indirectly, to ensure the security of all personally identifiable information collected, maintained and used by the Company relating to users of its websites, including summaries, reports and aggregate data based thereon (collectively, “Personal Data”) and (ii) has complied in all material respects with applicable data protection, privacy and similar Law relating to Personal Data and its publicly available privacy policies. True, correct and complete copies of all privacy policies of the Company in effect at any time in the three years prior to the date of this Agreement, including the privacy policies included in the Company’s websites, have previously been provided to Purchaser. The Company has taken all commercially reasonable steps necessary to protect the Personal Data in its possession against loss and against unauthorized access, use, modification, disclosure or other misuse. To the Knowledge of the Company, there has been no unauthorized access to or other misuse of such Personal Data in the three years immediately prior to the date of this Agreement. In the three years immediately prior to the date of this Agreement, no claims have been asserted or, to the Knowledge of the Company, threatened in writing against the Company by any Person alleging a violation of such Person’s privacy rights under any applicable Law or the Company’s publicly available privacy policies. The execution of this Agreement and the Company Ancillary Agreements and the consummation of the Contemplated Transactions will not materially breach or otherwise cause any material violation of any Law related to privacy, data protection or the collection and use of Personal Data gathered or accessed in the course of the operations of the Business. (j) Any other representation or warranty contained in this Article IV notwithstanding, the representations and warranties contained in this Section 4.13 constitute the sole representations and warranties of the Company relating to intellectual property and software.