Intellectual Property; Software. (a) Section 3.15(a) of the Company Disclosure Schedule lists all Company Material Intellectual Property owned or purported to be owned by any Company Entity that is currently registered or subject to a pending application for registration with a Governmental Authority (collectively, the “Company Registered Intellectual Property”). Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, a Company Entity is the sole and exclusive owner of all Company Registered Intellectual Property and all other Company Material Intellectual Property (including the Company Material Intellectual Property created by employees and contractors within the scope of their employment or engagement by Company Entities), free and clear of any Lien thereof (except for any Permitted Lien and the Company IP Agreements). All Company Registered Intellectual Property is subsisting, has not been abandoned or canceled and, to the Company’s Knowledge related to the registrations included therein, is valid and enforceable in all material respects. (b) Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, a Company Entity owns, licenses or otherwise has and has had the right to use all Intellectual Property used in the operation of the Company Entities’ businesses as currently conducted. (c) There are, and since December 31, 2017, have been, no material Actions pending or, to the Company’s Knowledge, threatened in writing (including cease and desist letters or requests for a license), against any Company Entity alleging infringement, misappropriation or other violation of any Intellectual Property of another Person or challenging the ownership, validity or enforceability of the Intellectual Property owned or purported to be owned by a Company Entity. (d) Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect: (1) the operation of the Company Entities’ respective businesses, including any product or service marketed, used, licensed, sold or otherwise provided by such Company Entity, as currently conducted and as conducted since December 31, 2017, is not infringing, misappropriating or otherwise violating, and has not infringed, misappropriated or otherwise violated, any Intellectual Property of any other Person and (2) since December 31, 2017, there has been no Action instituted or threatened in writing against a Company Entity alleging infringement, misappropriation, or violation of any such Intellectual Property or challenging the ownership, validity or enforceability of any Intellectual Property of more than de minimis value; (ii) (1) to the Company’s Knowledge, no Person is infringing, misappropriating or otherwise violating any Intellectual Property owned or purported to be owned by or exclusively licensed to any Company Entity and (2) since December 31, 2017, no Company Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or violation of any such Intellectual Property or challenging the ownership, validity or enforceability of any Intellectual Property; (iii) each Company Entity takes and has taken actions necessary to protect the confidentiality of trade secrets included in the Company Material Intellectual Property and of confidential information of other Persons possessed by any Company Entities (exclusive of Personal Information, which shall be covered exclusively by Section 3.16 below), and, since December 31, 2017, there has been no loss of trade secret rights or confidentiality (including loss due to failure to take reasonable measures to protect confidentiality) with respect thereto due to any breach of confidentiality by any Company Entity or, to the Company’s Knowledge, by any Person to which any such information has been provided by a Company Entity; (iv) no current or former partner, director, stockholder, officer, or employee of each Company Entity owns, licenses to the Company any Intellectual Property created while employed or working for any Company Entity, or retains any rights, title or interest in or to any Intellectual Property of more than de minimis value that is owned or purported to be owned by the Company Entities; (1) each Company Entity takes and has taken material actions necessary to maintain the operation of all material Company Software and Company IT Assets, including by implementing reasonable disaster recovery incident response plans and, as applicable, through contractual obligations requiring third-party providers of such Company Software and Company IT Assets to take such actions, and (2) since December 31, 2017, there has been no material failure in, or disruptions of, the Company Software or the Company IT Assets (including, for clarity, related to any third-party providers of such Company Software and Company IT Assets) that has not been fully remedied; and (1) all material Company Software which is owned or purported to be owned by any Company Entity functions substantially in compliance with applicable documentation and specifications, (2) the Company IT Assets are sufficient for the conduct of the material business of the Company Entities, taken as a whole, as currently conducted, (3) no Software or other material that is distributed as “open source software” or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL) or GNU Affero General Public License (AGPL) (“Open Source Software”) has been incorporated into, linked or distributed with any Company Software to deliver or provide a product or service of the Company or its Subsidiaries by or on behalf of any Company Entity in a manner that would: (A) either currently or upon its distribution, require any Company Software (in whole or in part) to be licensed, sold or disclosed, (B) grant the right to make derivative works of any Company Software (in whole or in part) or (C) render such Company Software subject to any of the licenses that govern such Open Source Software and (4) the Company Software owned or purported to be owned by any Company Entity does not, and, to the Company’s Knowledge (despite reasonable efforts to identify such items), all other Company Software does not, contain any device or feature designed to disrupt, disable, or otherwise impair the functioning of any such Software or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” or other code or routines that permit unauthorized access or use or the unauthorized disablement or erasure of such Software, Company IT Assets or information or other data (or all parts thereof) or other Software or IT assets of users.
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Samples: Merger Agreement (Centene Corp), Merger Agreement (Magellan Health Inc)
Intellectual Property; Software. (a) Section 3.15(a) of the Company Disclosure Schedule lists all Company Material Intellectual Property owned or purported to be owned by any Company Entity that is currently registered or subject to a pending application for registration with a Governmental Authority (collectively, the “Company Registered Intellectual Property”). Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, a Company Entity is the sole and exclusive owner of all Company Registered Intellectual Property and all other Company Material Intellectual Property (including the Company Material Intellectual Property created by employees and contractors within the scope of their employment or engagement by the Company Entities), free and clear of any Lien thereof thereon (except for any Permitted Lien and the Company IP AgreementsLien). All Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, all (i) Company Registered Intellectual Property is subsisting, has not been abandoned or canceled and, to the Company’s Knowledge related to the subsisting and (ii) issuances and registrations included therein, is in the Company Registered Intellectual Property are valid and enforceable in all material respectsenforceable.
(b) Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, a Company Entity owns, licenses or otherwise has, and since December 31, 2017, has and has had owned, licensed or otherwise had, the right to use all Intellectual Property used in in, or held for use for, the operation of the Company Entities’ businesses as currently conductedbusinesses.
(c) There are, and since December 31, 2017, have been, no material Actions pending or, to the Company’s Knowledge, threatened in writing (including cease and desist letters or requests for a license), against any Company Entity alleging infringement, misappropriation or other violation of any Intellectual Property of another Person or challenging the ownership, validity or enforceability of the Intellectual Property owned or purported to be owned by a Company Entity.
(d) Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect:
(1i) (A) the operation of the Company Entities’ respective businesses, including any product or service marketed, used, licensed, sold or otherwise provided by such Company Entity, as currently conducted and as conducted since December 31, 2017, is not infringing, misappropriating or otherwise violating, and has not infringed, misappropriated or otherwise violated, (1) any Patents or Marks of any other Person or (2) any other Intellectual Property of any other Person Person; and (2B) since December 31, 2017, there has been no Action instituted or threatened in writing against a any Company Entity alleging infringement, misappropriation, misappropriation or other violation of any such Intellectual Property of another Person or challenging the ownership, validity or enforceability of any Company Intellectual Property of more than de minimis valueProperty;
(ii) (1A) to the Company’s Knowledge, no Person is infringing, misappropriating or otherwise violating any Company Intellectual Property owned or purported to be owned by or exclusively licensed to any Company Entity and (2B) since December 31, 2017, no Company Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or other violation of any such Intellectual Property or challenging the ownership, validity or enforceability of any Company Intellectual Property;
(iii) each Company Entity takes and has taken commercially reasonable actions necessary to protect the confidentiality of (A) trade secrets and other confidential information included in the Company Material Intellectual Property and of (B) confidential information of other Persons possessed by any Company Entities (exclusive of Personal Information, which shall be covered exclusively by Section 3.16 below), and, since December 31, 2017, there has been no loss of trade secret rights or confidentiality (including loss due to failure to take reasonable measures to protect confidentiality) Entity with respect thereto due to any breach of confidentiality by any which such Company Entity or, to the Company’s Knowledge, by any Person to which any such information has been provided by a Company Entityconfidentiality obligation;
(iv) no current or former partner, director, stockholder, officer, or employee of each Company Entity owns, licenses to the Company any Intellectual Property created while employed or working for any Company Entity, or retains any rights, title or interest in or to any Intellectual Property of more than de minimis value that is owned or purported to be owned by the Company Entities;
(1A) each Company Entity takes and has taken material commercially reasonable actions necessary to maintain the operation of all material Company Software and Company IT Assets, including by implementing reasonable disaster recovery incident response plans and, as applicable, through contractual obligations requiring third-party providers of with respect to such Company Software and Company IT Assets to take such actionsAssets, and (2B) since December 31, 2017, there has been no material failure in, or disruptions of, the any Company Software or the any Company IT Assets (including, for clarity, related to any third-party providers of such Company Software and Company IT Assets) that has not been fully remedied; and
(1) all material Company Software which is owned or purported to be owned by any Company Entity functions substantially in compliance with applicable documentation and specifications, (2A) the Company IT Assets are sufficient for the conduct of the material business businesses of the Company Entities, taken as a whole, as currently conducted, (3B) no Software or other material that is distributed as “open source software” or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL) or GNU Affero General Public License (AGPL) (collectively, “Open Source Software”) has been incorporated into, linked to or distributed with any Company Software owned or purported to deliver or provide a product or service of be owned by the Company or its Subsidiaries Entities by or on behalf of any Company Entity in a manner that would: would (A1) either currently or upon its distribution, require any such Company Software (in whole or in part) to be licensed, sold or discloseddisclosed in source code form, (B2) grant the right to make modifications or derivative works of any such Company Software (in whole or in part), (3) impose a requirement or condition that such Company Software be redistributable at no charge or (C4) render such Company Software subject to any other limitation, restriction or condition on the right or ability of the licenses that govern any Company Entity to use or distribute such Open Source Company Software or any Software or source code used or integrated therewith and (4C) the Company Software owned or purported to be owned by any the Company Entity Entities does not, and, to the Company’s Knowledge (despite reasonable efforts to identify such items), all other Company Software does not, not contain any device or feature designed to disruptthat disrupts, disabledisables, or otherwise impair impairs the functioning of any such Company Software or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” or other code or routines that permit unauthorized access or use or the unauthorized access, use, disablement or erasure of such Company Software, Company IT Assets or information or other data (or all parts thereof) or other Software or IT information technology assets of usersduly authorized users of such Company Software.
(d) Except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, no source code for any Company Software owned or purported to be owned by the Company Entities (i) has been provided, licensed or made available to any customer, business partner, escrow agent or other Person except to employees and third-party Software developers of a Company Entity solely for use, modification, creation of derivative works and/or disclosure in connection with their employment or engagement with such Company Entity, or (ii) is subject to any duty or obligation (whether present, contingent, or otherwise) of any Company Entity to deliver, license, or make available any such source code to any customer, business partner, escrow agent or other Person.
Appears in 1 contract
Intellectual Property; Software. (a) Section 3.15(a) The Company has made available a true, correct and complete list, as of the date of this Agreement, of all issued Patents and pending applications for Patents, registered Trademarks and pending applications to register Trademarks, and registered Copyrights and applications to register Copyrights, in each case that are included in the Company Disclosure Schedule lists all Company Material Owned Intellectual Property owned and are material to the business of the Company. All registration, renewal and maintenance fees and taxes due and payable on or purported before the Closing Date and necessary to be owned by any maintain in effect the applications and registrations listed pursuant to the preceding sentence have been paid, except to the extent that an Acquired Company Entity that is currently registered has elected not to maintain such applications or subject to a pending application for registration with a Governmental Authority (collectively, registrations in the “Company Registered Intellectual Property”). Except as has not resulted in ordinary course of business and would not reasonably be expected to result inexcept as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, a Company Entity is the sole and exclusive owner of all Company Registered Intellectual Property and all other Company Material Intellectual Property (including the Company Material Intellectual Property created by employees and contractors within the scope of their employment or engagement by Company Entities), free and clear of any Lien thereof (except for any Permitted Lien and the Company IP Agreements). All Company Registered Intellectual Property is subsisting, has not been abandoned or canceled and, to the Company’s Knowledge related to the registrations included therein, is valid and enforceable in all material respects.
(b) Except as has not resulted in and would not reasonably be expected to result inas, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) one or more Acquired Companies exclusively owns all right, title and interest in the Company Owned Intellectual Property and Company Owned Technology, free and clear of any Liens (other than Permitted IP Encumbrances) or has a Company Entity owns, licenses or otherwise has and has had the valid right to use all any other Intellectual Property and Technology used in or held for use in, and necessary for the operation conduct of, the Company’s business and (ii) the execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the Transactions, will not, cause the loss of any ownership of any Company Entities’ businesses as currently conductedOwned Intellectual Property or Company Owned Technology, or loss of license rights granted to an Acquired Company in and to any Company Intellectual Property (other than Company Owned Intellectual Property).
(c) There are, and since December 31, 2017, have been, no material Actions pending or, to the Company’s Knowledge, threatened in writing (including cease and desist letters or requests for a license), against any Company Entity alleging infringement, misappropriation or other violation of any Intellectual Property of another Person or challenging the ownership, validity or enforceability Except as set forth on Section 3.18(c) of the Intellectual Property owned Company Disclosure Letter, or purported to be owned by a Company Entity.
(d) Except as has not resulted individually or in and the aggregate, would not reasonably be expected to result in, individually or in the aggregate, have a Company Material Adverse Effect:
: (1i) the operation business of the Acquired Companies (including the Company Software, Company Owned Intellectual Property and Company Owned Technology), as presently conducted, does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any other Person; and (ii) as of the date of this Agreement, there are no Actions (including infringement, misappropriation, interference, derivation, reexamination, inter partes review, ex parte reexamination, inter partes reexamination, post-grant review or covered business method review, reissue, opposition, nullity or cancelation proceeding) pending or presently threatened in writing against or to the knowledge of the Company Entities’ respective businessesaffecting any Acquired Company with respect to the business of the Acquired Companies or entered against any Acquired Company, including in each case that relates to any product Company Owned Intellectual Property, Company Owned Technology, Company Products or service marketedCompany Software.
(d) To the knowledge of the Company, usedsince January 1, licensed2020, sold no Person has infringed, misappropriated or otherwise provided by such Company Entityviolated, as and no Person is currently conducted and as conducted since December 31, 2017, is not infringing, misappropriating or otherwise violating, and has not infringedany Company Owned Intellectual Property, misappropriated Company Owned Technology, Company Products or otherwise violatedCompany Software, any Intellectual Property of any other Person and (2) since December 31, 2017, there has been no Action instituted or threatened in writing against each case in a manner that would reasonably be expected to have a Company Entity alleging infringement, misappropriation, or violation of any such Intellectual Property or challenging the ownership, validity or enforceability of any Intellectual Property of more than de minimis value;Material Adverse Effect.
(iie) (1) Except to the Company’s Knowledge, no Person is infringing, misappropriating or otherwise violating any Intellectual Property owned or purported extent that the Acquired Companies have desired to be owned by or exclusively licensed to any disclose trade secrets included in the Company Entity and (2) since December 31, 2017, no Company Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or violation of any such Intellectual Property or challenging the ownership, validity or enforceability of any Owned Intellectual Property;
(iii) each , Company Entity takes and has Owned Technology, Company Products or Company Software, the Acquired Companies have taken actions necessary commercially reasonable measures to protect maintain the confidentiality of trade secrets included in the Company Owned Intellectual Property, Company Owned Technology, Company Products and Company Software, except as would not reasonably be expected to have a Company Material Intellectual Property Adverse Effect.
(f) To the knowledge of the Company, the Company owns or has a right to access and use all the material Company IT Systems, as such material Company IT Systems are currently used by the Acquired Companies, except as would not reasonably be expected to have a Company Material Adverse Effect. The Acquired Companies maintain policies and procedures that are designed to protect the confidentiality, integrity and security of confidential information the Company IT Systems and the Company Data. To the knowledge of the Company, the Company IT Systems (i) are reasonably adequate for the current operation of the Company and (ii), have not, including in relation to any data stored or processed therein, including Company Data, ceased operating in any material respect, had any substantial feature or key component rendered unusable or suffered any security breach or unauthorized access to, deletion or other Persons possessed by misuse of, any Company Entities Data since January 1, 2018, and all material vulnerabilities identified therein have been promptly rectified, in each case except as would not reasonably be expected to have a Company Material Adverse Effect.
(exclusive g) As of Personal Information, which shall be covered exclusively by Section 3.16 below), and, since December 31, 2017the date of this Agreement, there has been are no loss of trade secret rights or confidentiality (including loss due to failure to take reasonable measures to protect confidentiality) with respect thereto due to any breach of confidentiality by any Company Entity or, to the Company’s Knowledge, by any Person to which any such information has been provided by a Company Entity;
(iv) no current or former partner, director, stockholder, officerActions pending, or employee of each Company Entity ownspresently threatened in writing against any Acquired Company, licenses claiming that Open Source Code licensed to the Company is incorporated by an Acquired Company into or distributed by an Acquired Company with any material Company owned proprietary Software in a manner that requires the Company to disclose the source code for such Company owned proprietary Software for no fees or to license any patents in connection with such software, in each case except as would not reasonably be expected to have a Company Material Adverse Effect. The Acquired Companies are in material compliance with the terms and conditions of all licenses for the Open Source Code. No Acquired Company has: (i) incorporated Open Source Code into, or combined or linked Open Source Code with, the Company Products or Company Software or; (ii) distributed Open Source Code in conjunction with any Company Products or Company Software or; or (iii) used Open Source Code to develop, distribute or provide the Company Products or Company Software, in such a way that, with respect to the foregoing clause (i), (ii) or (iii): (A) creates, or purports to create any obligation for an Acquired Company with respect to any Company Intellectual Property (other than the underlying Open Source Code); (B) revokes, or purports to revoke, the license of any Intellectual Property created while employed or working for any embodied by the Open Source Code if an Acquired Company Entity, or retains any rights, title or interest in or to asserts any Intellectual Property of more than de minimis value that is owned or purported to be owned by the Acquired Company Entities;
against any Person; or (C) grants, or purports to grant, to any third party, any rights or immunities under any Company Owned Intellectual Property (including using any Open Source Code with respect to the foregoing clause (i), (ii) or (iii) that require, as a condition of use, modification and/or distribution of such Open Source Code that other Software incorporated into, derived from or distributed with such Open Source Code be (1) each Company Entity takes and has taken material actions necessary to maintain the operation of all material Company Software and Company IT Assets, including by implementing reasonable disaster recovery incident response plans and, as applicable, through contractual obligations requiring third-party providers of such Company Software and Company IT Assets to take such actions, and (2) since December 31, 2017, there has been no material failure in, disclosed or disruptions of, the Company Software or the Company IT Assets (including, for clarity, related to any third-party providers of such Company Software and Company IT Assets) that has not been fully remedied; and
(1) all material Company Software which is owned or purported to be owned by any Company Entity functions substantially distributed in compliance with applicable documentation and specificationssource code form, (2) be licensed for the purpose of making derivative works, or (3) be redistributable at no charge).
(h) The Acquired Companies are, and at all times since January 1, 2019 have been, in compliance with all applicable Laws pertaining to privacy, data protection, data transfer, consumer protection, or social security number protection, including all privacy and security breach disclosure Laws and implementing Laws (“Privacy Laws”), the Company’s privacy policies and the requirements of any contract or codes of conduct to which the Company IT Assets are sufficient is a party (collectively, the “Privacy Commitments”), except for the conduct such violations or non-compliance that have not had, or would not reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2019, none of the Acquired Companies has received written notice of any, and to the knowledge of the Company, there is no, material violation of any Privacy Commitments through the date hereof. No action, audit, assessment, suit, legal proceeding, investigation, administrative enforcement proceeding or arbitration proceeding before any court, administrative body or other Governmental Entity has been filed or commenced against any Acquired Company nor, to the knowledge of the Company, threatened against any Acquired Company, alleging any failure to comply with any applicable Privacy Laws, and no Acquired Company has incurred any material liabilities under any such Laws. The execution, delivery and performance of this Agreement and the transactions contemplated herein comply, and will comply, in all material respects, with all Privacy Commitments of the Acquired Companies. To the knowledge of the Company, none of the Acquired Companies is subject to any contractual requirements, privacy policies or other legal obligations that, at the Effective Time and as a result of the Transactions, would prohibit the Acquired Companies at the Effective Time from receiving or using Company Data substantially in the manner in which the Acquired Companies receive and use such Company Data immediately prior to the Effective Time.
(i) All Company Data owned by an Acquired Company and all Intellectual Property therein, are owned by an Acquired Company free and clear of all Liens (excluding Permitted IP Encumbrances), and all Company Data and Intellectual Property therein are not subject to any Contract containing any assignment or license of, or covenant not to assert or enforce any rights to the Company Data. The Acquired Companies have, in all material respects, all necessary and required rights to license, use, sublicense and distribute the Company Data to conduct the business of the Company Entitiesas presently conducted.
(j) No Acquired Company is subject to an obligation to grant licenses, covenants not to sxx or similar rights to any Person under any Company Owned Intellectual Property or Company Owned Technology in connection with any membership or participation in, or contribution to, any standards-setting bodies, industry groups, patent non-assertion pacts or pooling arrangements or similar organizations (“Standards Organizations”). No Patent included in the Company Owned Intellectual Property (A) is, or (B) has been identified by any Acquired Company, to the knowledge of the Company, any other Person, as essential to any Standards Organization or any standard promulgated by any Standards Organization.
(k) Except as set forth on Section 3.18(k) of the Company Disclosure Letter, or as would not reasonably be expected to, either individually or in the aggregate, be material to the Acquired Companies taken as a whole, as currently conductedin each case in which any Acquired Company has engaged or hired an employee, (3) no contractor or consultant that has created or developed any Company Products, Company Software or other material that is distributed as “open source software” any Intellectual Property or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL) or GNU Affero General Public License (AGPL) (“Open Source Software”) has been incorporated into, linked or distributed with any Company Software to deliver or provide a product or service of the Company or its Subsidiaries by Technology for or on behalf of any an Acquired Company, the Acquired Company Entity in a manner that wouldhas obtained: (Ai) a valid and present assignment, either currently by operation of Law or upon its distributionwritten agreement, require any of all right, title and interest in the Company Software Intellectual Property associated therewith; (ii) confidentiality obligations in whole or in partfavor of the Acquired Company; and (iii) to be licensed, sold or disclosed, (B) grant the right to make derivative works a waiver of any moral rights (to the extent possible under applicable Law) that such Person may possess in any such Intellectual Property and Technology.
(l) The representations and warranties set forth in this Section 3.18 are the only representations and warranties being made by the Company Software (in whole or in part) or (C) render such Company Software subject this Agreement with respect to any of the licenses that govern such Open Source Software and (4) the Company Software owned or purported to be owned by any Company Entity does nottitle, andownership, to the Company’s Knowledge (despite reasonable efforts to identify such items), all other Company Software does not, contain any device or feature designed to disrupt, disableencumbrances, or otherwise impair the functioning of any such Software or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” infringement, misappropriation or other code violation of or routines that permit unauthorized access or use or with respect to Intellectual Property.
(m) For purposes of this Agreement, the unauthorized disablement or erasure of such Software, Company IT Assets or information or other data (or all parts thereof) or other Software or IT assets of users.following terms shall have the meanings assigned below:
Appears in 1 contract
Intellectual Property; Software. (a) Section 3.15(a) The Company has made available a true, correct and complete list, as of the date of this Agreement, of all issued Patents and pending applications for Patents, registered Trademarks and pending applications to register Trademarks, and registered Copyrights and applications to register Copyrights, in each case that are included in the Company Disclosure Schedule lists all Company Material Owned Intellectual Property owned and are material to the business of the Company. All registration, renewal and maintenance fees and taxes due and payable on or purported before the Closing Date and necessary to be owned by any maintain in effect the applications and registrations listed pursuant to the preceding sentence have been paid, except to the extent that an Acquired Company Entity that is currently registered has elected not to maintain such applications or subject to a pending application for registration with a Governmental Authority (collectively, registrations in the “Company Registered Intellectual Property”). Except as has not resulted in ordinary course of business and would not reasonably be expected to result inexcept as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, a Company Entity is the sole and exclusive owner of all Company Registered Intellectual Property and all other Company Material Intellectual Property (including the Company Material Intellectual Property created by employees and contractors within the scope of their employment or engagement by Company Entities), free and clear of any Lien thereof (except for any Permitted Lien and the Company IP Agreements). All Company Registered Intellectual Property is subsisting, has not been abandoned or canceled and, to the Company’s Knowledge related to the registrations included therein, is valid and enforceable in all material respects.
(b) Except as has not resulted in and would not reasonably be expected to result inas, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) one or more Acquired Companies exclusively owns all right, title and interest in the Company Owned Intellectual Property and Company Owned Technology, free and clear of any Liens (other than Permitted IP Encumbrances) or has a Company Entity owns, licenses or otherwise has and has had the valid right to use all any other Intellectual Property and Technology used in or held for use in, and necessary for the operation conduct of, the Company’s business and (ii) the execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the Transactions, will not, cause the loss of any ownership of any Company Entities’ businesses as currently conductedOwned Intellectual Property or Company Owned Technology, or loss of license rights granted to an Acquired Company in and to any Company Intellectual Property (other than Company Owned Intellectual Property).
(c) There are, and since December 31, 2017, have been, no material Actions pending or, to the Company’s Knowledge, threatened in writing (including cease and desist letters or requests for a license), against any Company Entity alleging infringement, misappropriation or other violation of any Intellectual Property of another Person or challenging the ownership, validity or enforceability Except as set forth on Section 3.18(c) of the Intellectual Property owned Company Disclosure Letter, or purported to be owned by a Company Entity.
(d) Except as has not resulted individually or in and the aggregate, would not reasonably be expected to result in, individually or in the aggregate, have a Company Material Adverse Effect:
: (1i) the operation business of the Acquired Companies (including the Company Software, Company Owned Intellectual Property and Company Owned Technology), as presently conducted, does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any other Person; and (ii) as of the date of this Agreement, there are no Actions (including infringement, misappropriation, interference, derivation, reexamination, inter partes review, ex parte reexamination, inter partes reexamination, post-grant review or covered business method review, reissue, opposition, nullity or cancelation proceeding) pending or presently threatened in writing against or to the knowledge of the Company Entities’ respective businessesaffecting any Acquired Company with respect to the business of the Acquired Companies or entered against any Acquired Company, including in each case that relates to any product Company Owned Intellectual Property, Company Owned Technology, Company Products or service marketedCompany Software.
(d) To the knowledge of the Company, usedsince January 1, licensed2020, sold no Person has infringed, misappropriated or otherwise provided by such Company Entityviolated, as and no Person is currently conducted and as conducted since December 31, 2017, is not infringing, misappropriating or otherwise violating, and has not infringedany Company Owned Intellectual Property, misappropriated Company Owned Technology, Company Products or otherwise violatedCompany Software, any Intellectual Property of any other Person and (2) since December 31, 2017, there has been no Action instituted or threatened in writing against each case in a manner that would reasonably be expected to have a Company Entity alleging infringement, misappropriation, or violation of any such Intellectual Property or challenging the ownership, validity or enforceability of any Intellectual Property of more than de minimis value;Material Adverse Effect.
(iie) (1) Except to the Company’s Knowledge, no Person is infringing, misappropriating or otherwise violating any Intellectual Property owned or purported extent that the Acquired Companies have desired to be owned by or exclusively licensed to any disclose trade secrets included in the Company Entity and (2) since December 31, 2017, no Company Entity has instituted or threatened in writing any Actions against any Person alleging any infringement, misappropriation or violation of any such Intellectual Property or challenging the ownership, validity or enforceability of any Owned Intellectual Property;
(iii) each , Company Entity takes and has Owned Technology, Company Products or Company Software, the Acquired Companies have taken actions necessary commercially reasonable measures to protect maintain the confidentiality of trade secrets included in the Company Owned Intellectual Property, Company Owned Technology, Company Products and Company Software, except as would not reasonably be expected to have a Company Material Intellectual Property Adverse Effect.
(f) To the knowledge of the Company, the Company owns or has a right to access and use all the material Company IT Systems, as such material Company IT Systems are currently used by the Acquired Companies, except as would not reasonably be expected to have a Company Material Adverse Effect. The Acquired Companies maintain policies and procedures that are designed to protect the confidentiality, integrity and security of confidential information the Company IT Systems and the Company Data. To the knowledge of the Company, the Company IT Systems (i) are reasonably adequate for the current operation of the Company and (ii), have not, including in relation to any data stored or processed therein, including Company Data, ceased operating in any material respect, had any substantial feature or key component rendered unusable or suffered any security breach or unauthorized access to, deletion or other Persons possessed by misuse of, any Company Entities Data since January 1, 2018, and all material vulnerabilities identified therein have been promptly rectified, in each case except as would not reasonably be expected to have a Company Material Adverse Effect.
(exclusive g) As of Personal Information, which shall be covered exclusively by Section 3.16 below), and, since December 31, 2017the date of this Agreement, there has been are no loss of trade secret rights or confidentiality (including loss due to failure to take reasonable measures to protect confidentiality) with respect thereto due to any breach of confidentiality by any Company Entity or, to the Company’s Knowledge, by any Person to which any such information has been provided by a Company Entity;
(iv) no current or former partner, director, stockholder, officerActions pending, or employee of each Company Entity ownspresently threatened in writing against any Acquired Company, licenses claiming that Open Source Code licensed to the Company is incorporated by an Acquired Company into or distributed by an Acquired Company with any material Company owned proprietary Software in a manner that requires the Company to disclose the source code for such Company owned proprietary Software for no fees or to license any patents in connection with such software, in each case except as would not reasonably be expected to have a Company Material Adverse Effect. The Acquired Companies are in material compliance with the terms and conditions of all licenses for the Open Source Code. No Acquired Company has: (i) incorporated Open Source Code into, or combined or linked Open Source Code with, the Company Products or Company Software or; (ii) distributed Open Source Code in conjunction with any Company Products or Company Software or; or (iii) used Open Source Code to develop, distribute or provide the Company Products or Company Software, in such a way that, with respect to the foregoing clause (i), (ii) or (iii): (A) creates, or purports to create any obligation for an Acquired Company with respect to any Company Intellectual Property (other than the underlying Open Source Code); (B) revokes, or purports to revoke, the license of any Intellectual Property created while employed or working for any embodied by the Open Source Code if an Acquired Company Entity, or retains any rights, title or interest in or to asserts any Intellectual Property of more than de minimis value that is owned or purported to be owned by the Acquired Company Entities;
against any Person; or (C) grants, or purports to grant, to any third party, any rights or immunities under any Company Owned Intellectual Property (including using any Open Source Code with respect to the foregoing clause (i), (ii) or (iii) that require, as a condition of use, modification and/or distribution of such Open Source Code that other Software incorporated into, derived from or distributed with such Open Source Code be (1) each Company Entity takes and has taken material actions necessary to maintain the operation of all material Company Software and Company IT Assets, including by implementing reasonable disaster recovery incident response plans and, as applicable, through contractual obligations requiring third-party providers of such Company Software and Company IT Assets to take such actions, and (2) since December 31, 2017, there has been no material failure in, disclosed or disruptions of, the Company Software or the Company IT Assets (including, for clarity, related to any third-party providers of such Company Software and Company IT Assets) that has not been fully remedied; and
(1) all material Company Software which is owned or purported to be owned by any Company Entity functions substantially distributed in compliance with applicable documentation and specificationssource code form, (2) be licensed for the purpose of making derivative works, or (3) be redistributable at no charge).
(h) The Acquired Companies are, and at all times since January 1, 2019 have been, in compliance with all applicable Laws pertaining to privacy, data protection, data transfer, consumer protection, or social security number protection, including all privacy and security breach disclosure Laws and implementing Laws (“Privacy Laws”), the Company’s privacy policies and the requirements of any contract or codes of conduct to which the Company IT Assets are sufficient is a party (collectively, the “Privacy Commitments”), except for the conduct such violations or non-compliance that have not had, or would not reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2019, none of the Acquired Companies has received written notice of any, and to the knowledge of the Company, there is no, material violation of any Privacy Commitments through the date hereof. No action, audit, assessment, suit, legal proceeding, investigation, administrative enforcement proceeding or arbitration proceeding before any court, administrative body or other Governmental Entity has been filed or commenced against any Acquired Company nor, to the knowledge of the Company, threatened against any Acquired Company, alleging any failure to comply with any applicable Privacy Laws, and no Acquired Company has incurred any material liabilities under any such Laws. The execution, delivery and performance of this Agreement and the transactions contemplated herein comply, and will comply, in all material respects, with all Privacy Commitments of the Acquired Companies. To the knowledge of the Company, none of the Acquired Companies is subject to any contractual requirements, privacy policies or other legal obligations that, at the Effective Time and as a result of the Transactions, would prohibit the Acquired Companies at the Effective Time from receiving or using Company Data substantially in the manner in which the Acquired Companies receive and use such Company Data immediately prior to the Effective Time.
(i) All Company Data owned by an Acquired Company and all Intellectual Property therein, are owned by an Acquired Company free and clear of all Liens (excluding Permitted IP Encumbrances), and all Company Data and Intellectual Property therein are not subject to any Contract containing any assignment or license of, or covenant not to assert or enforce any rights to the Company Data. The Acquired Companies have, in all material respects, all necessary and required rights to license, use, sublicense and distribute the Company Data to conduct the business of the Company Entitiesas presently conducted.
(j) No Acquired Company is subject to an obligation to grant licenses, covenants not to xxx or similar rights to any Person under any Company Owned Intellectual Property or Company Owned Technology in connection with any membership or participation in, or contribution to, any standards-setting bodies, industry groups, patent non-assertion pacts or pooling arrangements or similar organizations (“Standards Organizations”). No Patent included in the Company Owned Intellectual Property (A) is, or (B) has been identified by any Acquired Company, to the knowledge of the Company, any other Person, as essential to any Standards Organization or any standard promulgated by any Standards Organization.
(k) Except as set forth on Section 3.18(k) of the Company Disclosure Letter, or as would not reasonably be expected to, either individually or in the aggregate, be material to the Acquired Companies taken as a whole, as currently conductedin each case in which any Acquired Company has engaged or hired an employee, (3) no contractor or consultant that has created or developed any Company Products, Company Software or other material that is distributed as “open source software” any Intellectual Property or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL) or GNU Affero General Public License (AGPL) (“Open Source Software”) has been incorporated into, linked or distributed with any Company Software to deliver or provide a product or service of the Company or its Subsidiaries by Technology for or on behalf of any an Acquired Company, the Acquired Company Entity in a manner that wouldhas obtained: (Ai) a valid and present assignment, either currently by operation of Law or upon its distributionwritten agreement, require any of all right, title and interest in the Company Software Intellectual Property associated therewith; (ii) confidentiality obligations in whole or in partfavor of the Acquired Company; and (iii) to be licensed, sold or disclosed, (B) grant the right to make derivative works a waiver of any moral rights (to the extent possible under applicable Law) that such Person may possess in any such Intellectual Property and Technology.
(l) The representations and warranties set forth in this Section 3.18 are the only representations and warranties being made by the Company Software (in whole or in part) or (C) render such Company Software subject this Agreement with respect to any of the licenses that govern such Open Source Software and (4) the Company Software owned or purported to be owned by any Company Entity does nottitle, andownership, to the Company’s Knowledge (despite reasonable efforts to identify such items), all other Company Software does not, contain any device or feature designed to disrupt, disableencumbrances, or otherwise impair the functioning of any such Software or any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device” infringement, misappropriation or other code violation of or routines that permit unauthorized access or use or with respect to Intellectual Property.
(m) For purposes of this Agreement, the unauthorized disablement or erasure of such Software, Company IT Assets or information or other data (or all parts thereof) or other Software or IT assets of users.following terms shall have the meanings assigned below:
Appears in 1 contract
Samples: Merger Agreement (ExOne Co)
