Intellectual Property; Technology. Schedule 3.11 lists all --------------------------------- Intellectual Property owned or used by the Company or any of it Subsidiaries and all current license agreements, whether written or oral, pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Property. Except as would not have, individually or in the aggregate, a Material Adverse Effect on the Company and except as disclosed in the Company SEC Reports or Schedule 3.11: (a) the Company and each of its Subsidiaries owns, controls or is perpetually licensed to use (in each case, free and clear of any liens or restrictions), all Intellectual Property used in, or necessary for the conduct of, its business as currently conducted or as currently planned to be conducted; (b) the Company and its Subsidiaries are not infringing or otherwise violating the Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which the Company or any Subsidiary acquired the right to use any Intellectual Property and has a right-to-use the technology which it is presently using in its current commercial products; (c) no person has commenced a proceeding in any court or patent office worldwide challenging or claiming the invalidity or unenforceability of, or contesting the rights of the Company or any Subsidiary to, any Intellectual Property owned or controlled by and/or licensed to the Company or its Subsidiaries used in or necessary for the conduct of its business as currently conducted; (d) neither the Company nor any of its Subsidiaries has received any written notice or otherwise has knowledge of any pending or threatened claim, order or proceeding with respect to any Intellectual Property owned, controlled, licensed or used by the Company or its Subsidiaries and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of such Intellectual Property; (e) neither the Company nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party for infringement of, or breach of any license or agreement involving, any of the Intellectual Property owned by or licensed to the Company or its Subsidiaries; (f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, the Company or any Subsidiary; (g) the Company and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, "Intellectual Property" shall mean
Appears in 1 contract
Intellectual Property; Technology. Schedule 3.11 lists all --------------------------------- Intellectual Property owned or used by the Company or any of it Subsidiaries and all current license agreements, whether written or oral, pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Property. Except as would not have, individually or in the aggregate, a Material Adverse Effect on the Company and except as disclosed in the Company SEC Reports or Schedule 3.11:
(a) Section 2.15(a) of the Disclosure Schedule contains a complete and accurate list and summary description of (i) all material Company Intellectual Property, and (ii) all material Commitments relating to the Company Intellectual Property (including any royalties paid or received by CCTI) to which CCTI is a party or by which CCTI is bound, except for any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with a value of less than $10,000 under which CCTI is the licensee. There are no outstanding and, to CCTI’s Knowledge, threatened defaults, disputes or disagreements with respect to any such agreement.
(b) The Company Intellectual Property is adequate for the operation of CCTI’s businesses as currently conducted. CCTI is the sole owner of all right, title, and interest in and to each of its Subsidiaries owns, controls or is perpetually licensed to use (in each casethe material Company Intellectual Property, free and clear of any liens or restrictions)all liens, all Intellectual Property used insecurity interests, or necessary for the conduct ofcharges, its business as currently conducted or as currently planned encumbrances, equities, and other adverse claims, and, to be conducted;
(b) the Company and its Subsidiaries are not infringing or otherwise violating the Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which the Company or any Subsidiary acquired CCTI’s Knowledge, has the right to use without payment to a third party all of the material Company Intellectual Property, and, to CCTI’s Knowledge, there is no reasonable basis for an assertion that any of the Company Intellectual Property and has a right-to-use the technology which it is presently using in its current commercial products;invalid or unenforceable.
(c) All current employees of CCTI have executed written Commitments with CCTI that assign to CCTI all rights to any inventions, improvements, discoveries, or information relating to the business of CCTI. To CCTI’s Knowledge, no person employee of CCTI has commenced a proceeding entered into any Commitment that restricts or limits in any court way the scope or patent office worldwide challenging type of work in which the employee may be engaged or claiming requires the invalidity or unenforceability ofemployee to transfer, assign, or contesting disclose information concerning his work to anyone other than CCTI.
(d) Except as would not result in a Material Adverse Change, neither the rights use of the any Company or any Subsidiary to, any Intellectual Property owned or controlled by and/or licensed to the Company or its Subsidiaries used in or necessary for nor the conduct of its CCTI’s business as currently conducted;
(d) neither the Company nor , infringes on any of its Subsidiaries has received any written notice or otherwise has knowledge of any pending or threatened claim, order or proceeding with respect to any Intellectual Property owned, controlled, licensed or used by the Company or its Subsidiaries and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of such Intellectual Property;
(e) neither the Company nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property intellectual property rights of any third party; , and no such claims have been asserted that have not been resolved. To CCTI’s Knowledge, no third party is infringing on any of the Company Intellectual Property, and no such claims are pending by CCTI or (ii) has brought any action, suit or proceeding threatened by CCTI against any third party for infringement of, or breach of any license or agreement involving, any of the Intellectual Property owned by or licensed to the Company or its Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, the Company or any Subsidiary;
(g) the Company and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, "Intellectual Property" shall meanparty.
Appears in 1 contract
Samples: Stock Purchase Agreement (Clean Coal Technologies Inc.)
Intellectual Property; Technology. Except as would not have a Material Adverse Effect or except as set forth in Schedule 3.11 lists all --------------------------------- 2.15, (a) to the Knowledge of the Company, the conduct of the business of the Company and the Subsidiaries as currently conducted does not infringe upon or misappropriate the Intellectual Property rights of any third party, and no claim has been asserted to the Company that the conduct of the business of the Company and the Subsidiaries as currently conducted infringes upon the Intellectual Property rights of any third party; (b) with respect to each item of Intellectual Property owned or used by the Company or any a Subsidiary of it Subsidiaries and all current license agreements, whether written or oral, pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Property. Except as would not have, individually or in the aggregate, a Material Adverse Effect on the Company and except as disclosed used in the Company SEC Reports or Schedule 3.11:
(a) the Company and each of its Subsidiaries owns, controls or is perpetually licensed to use (in each case, free and clear of any liens or restrictions), all Intellectual Property used in, or necessary for the conduct of, connection with its business as currently conducted or as currently planned to be conducted;
(b) the “Company and its Subsidiaries are not infringing or otherwise violating the Owned Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which Property”), the Company or any such Subsidiary acquired of the right to use any Company owns such Company Owned Intellectual Property free and has a right-to-use the technology which it is presently using in its current commercial products;
clear of all Encumbrances, other than Permitted Encumbrances; (c) no person has commenced a proceeding in any court or patent office worldwide challenging or claiming the invalidity or unenforceability of, or contesting the rights with respect to each item of the Company or any Subsidiary to, any Intellectual Property owned or controlled by and/or licensed to the Company or its Subsidiaries used a Subsidiary of the Company (“Company Licensed Intellectual Property”), the Company or such Subsidiary has the right to use such Company Licensed Intellectual Property in or necessary for the conduct continued operation of its respective business as currently conducted;
pursuant to the terms of the license agreement governing the use of such Company Licensed Intellectual Property; (d) the Company Owned Intellectual Property has not been adjudged invalid or unenforceable in whole or in part; (e) to the Knowledge of the Company, no person is engaging in any activity that infringes upon the Company Owned Intellectual Property; (f) each license governing the use of the Company Licensed Intellectual Property is valid and enforceable, is binding (except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability affecting or relating to the rights of creditors or by general principles of equity) on the Company or its Subsidiary and, to the Knowledge of the Company, all other parties to such license, and is in full force and effect; (g) neither the Company nor any of its Subsidiaries has received any written notice or otherwise has subsidiary is, and, to the knowledge of the Company, no other party to any pending license of the Company Licensed Intellectual Property is in breach thereof or threatened claim, order or proceeding default thereunder; and (h) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall adversely affect any of the Company’s rights with respect to any the Company Owned Intellectual Property owned, controlled, licensed or used by the Company or its Subsidiaries and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of such Licensed Intellectual Property;
(e) neither the Company nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party for infringement of, or breach of any license or agreement involving, any of the Intellectual Property owned by or licensed to the Company or its Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, the Company or any Subsidiary;
(g) the Company and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, "Intellectual Property" shall mean.
Appears in 1 contract
Intellectual Property; Technology. Schedule 3.11 lists all --------------------------------- Intellectual Property owned or used by the Company or any of it Subsidiaries and all current license agreements, whether written or oral, pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Property. Except as would not have, individually or in the aggregate, have a Material Adverse Effect on the Company and or except as disclosed set forth in the Company SEC Reports or Schedule 3.11:
4.15, (a) the Company and each of its Subsidiaries owns, controls or is perpetually licensed to use (in each case, free and clear Seller has not received notice of any liens or restrictions), all Intellectual Property used in, or necessary for the conduct of, its business as currently conducted or as currently planned to be conducted;
(b) the Company and its Subsidiaries are not infringing or otherwise violating the Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which claim against the Company or any Subsidiary acquired asserting that the conduct of the Business as currently conducted infringes upon the intellectual property or proprietary rights of any Third Party, and to the knowledge of the Seller, the conduct of the Business as currently conducted does not infringe upon or misappropriate the intellectual property or proprietary rights of any Third Party; (b) with respect to the patents, patent applications, trademark and service mxxx applications and registrations, copyright registrations and applications, material unregistered copyrights, domain names and trade names owned by the Company and the Subsidiaries and used in connection with the Business as currently conducted (“Owned Intellectual Property”), the Company and the Subsidiaries, or any of them owns such Owned Intellectual Property free and clear of all Encumbrances, other than Permitted Encumbrances; (c) with respect to each patent, trademark, service mxxx, registered copyright, material unregistered copyright and domain name licensed to the Company and the Subsidiaries, or any of them (“Licensed Intellectual Property”), the Company and the Subsidiaries, or any of them, has the right to use any such Licensed Intellectual Property and in the continued operation of its business pursuant to the terms of the license agreement governing the use of such Licensed Intellectual Property; (d) the Owned Intellectual Property has a right-to-use not been adjudged invalid or unenforceable in whole or in part; (e) to the technology which it is presently using in its current commercial products;
(c) knowledge of Seller, no person has commenced a proceeding is engaging in any court activity that infringes upon the Owned Intellectual Property; (f) each license governing the use of the Licensed Intellectual Property is valid and enforceable, is binding (except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or patent office worldwide challenging similar laws of general applicability affecting or claiming the invalidity or unenforceability of, or contesting relating to the rights of creditors or by general principles of equity) on the Company or any Subsidiary toand, any Intellectual Property owned or controlled by and/or licensed to the Company or its Subsidiaries used knowledge of Seller, all other parties to such license, and is in or necessary for the conduct of its business as currently conducted;
full force and effect; (dg) neither the Company nor any of its Subsidiaries has received any written notice or otherwise has Subsidiary is, and, to the knowledge of any pending or threatened claimSeller, order or proceeding with respect no other party to any license of the Licensed Intellectual Property owned, controlled, licensed is in breach thereof or used by the Company or its Subsidiaries default thereunder; and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of such Intellectual Property;
(eh) neither the Company execution of this Agreement nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party for infringement of, or breach of any license or agreement involving, any the consummation of the Intellectual Property owned by or licensed to the Company or its Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, transactions contemplated hereby shall adversely affect the Company or any Subsidiary;
(g) ’s rights with respect to the Company and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve Owned Intellectual Property or the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, "Licensed Intellectual Property" shall mean.
Appears in 1 contract
Intellectual Property; Technology. (a) Schedule 3.11 lists 4.15(a) sets forth a true, complete and correct list of all --------------------------------- Intellectual Property owned by the Company and that is material to the operation of Company’s business (“Company Owned Intellectual Property”) and all Intellectual Property licensed to the Company and that is material to the operation of the Company’s business (“Company Licensed Intellectual Property”). Except as set forth on Schedule 4.15(a), (a) the conduct of the business of the Company as currently conducted, Company Owned Intellectual Property, and the past or used current uses of Company Owned Intellectual Property do not infringe upon, misappropriate, or violate the Intellectual Property rights or any other proprietary right of any third party, and no claim or demand has been made to the Company that the conduct of the business of the Company as currently conducted or the Company Owned Intellectual Property infringes upon the Intellectual Property rights or any other proprietary right of any third party; (b) with respect to each item of Company Owned Intellectual Property, the Company has all rights, title (including good and marketable title), and interest, free and clear of all Encumbrances, other than Permitted Encumbrances, and has the full, exclusive, and unrestricted right to use, make, have made, import, export and sell for export, manufacture, reproduce, distribute, display, perform, market, license, sell, offer to sell, modify, adapt, translate, enhance, improve, update and create derivative works based upon such Company Owned Intellectual Property without any consent or license from, or right of accounting or royalty to, any Person; (c) each item of Company Owned Intellectual Property that is registered with the United States or international government is registered solely in the Company’s name, which registration is current and has been properly maintained; (d) all items of Company Owned Intellectual Property were created either (i) as a work or invention for hire (as defined under U.S. copyright or patent law, as applicable) for and of the Company by regular full time employees of the Company, or (ii) by an author, creator, contributor, or developer that was not a regular full-time employee of the Company at the time such Person authored, created, contributed to or developed such Company Owned Intellectual Property, and such author, creator, contributor or developer has performed such services for the Company pursuant to an agreement with a third party which, among other things, provided for the services of such Person and which irrevocably assigned to the Company in writing all Intellectual Property rights and other proprietary rights in such Person’s work with respect to such Company Owned Intellectual Property; (e) with respect to each item of Company Licensed Intellectual Property, the Company has the right to use such Company Licensed Intellectual Property in the continued operation of its respective business as currently conducted pursuant to the terms of the license agreement governing the use of such Company Licensed Intellectual Property; (f) the Company Owned Intellectual Property has not been adjudged by a court of competent jurisdiction, arbitrator or other Governmental Entity, and to the Knowledge of the Company, no claim or demand has been made or is pending alleging that any Company Owned Intellectual Property is, invalid or unenforceable or not exclusively owned by the Company; (g) to the Knowledge of the Company, no Person is engaging or has engaged in any activity that infringes upon the Company’s Intellectual Property rights or any other proprietary right of the Company in Company Owned Intellectual Property; (h) each license governing the use of the Company Licensed Intellectual Property is valid and enforceable as against the Company and all other parties thereto, binding on the Company and all other parties thereto, and in full force and effect as against the Company and the other parties thereto; (i) the Company, the Company is not and, to the Knowledge of the Company, no other party to any license of the Company Licensed Intellectual Property is in breach thereof or default thereunder; and (j) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will create an Encumbrance upon the Company Owned Intellectual Property or the Company Licensed Intellectual Property, render any agreement governing the Company’s rights to Company Licensed Intellectual Property invalid, unenforceable or not binding with respect to the Company or any other parties thereto, or constitute, with or without notice or the passage of it Subsidiaries time or both, a breach, violation or default, or give rise to any right of termination, modification, cancellation, suspension, limitation, revocation or acceleration of, or prepayment or increased payment for, or otherwise in any way affect the terms or conditions governing, the Company’s rights in any Company Licensed Intellectual Property.
(b) Except as set forth on Schedule 4.15(b), Company has not exported Company Owned Intellectual Property or Company Licensed Intellectual Property outside the United States.
(c) For the purposes of this Section 4.15, “Software” means Company Owned Intellectual Property or Company Licensed Intellectual Property that is any computer program, operating or other system, application, firmware or software of any nature, whether operational, active, under development or design, non-operational or inactive (including all object code, source code, comment code, algorithms, processes, formulae, interfaces, navigational devices, menu structures or arrangements, icons, operational instructions, scripts, commands, syntax, screen designs, reports, designs, concepts and visual expressions), and, to the extent such exist, technical manuals, test scripts, user manuals and other documentation therefor, whether in machine-readable form, programming language, or any other language or symbols, and whether stored, encoded, recorded or written on disk, tape, film, memory device, paper or other media of any nature and any and all current license agreementsdatabases necessary or appropriate to operate for the use of any such computer program, whether written operating or oralother system, pursuant application, firmware or software. Except as set forth on Schedule 4.15(c), with respect to which the Software, (a) the Company maintains machine-readable master-reproducible copies, source code listings, technical documentation and user manuals for the most current releases and versions thereof and for all earlier releases or versions thereof currently provided, used, maintained, marketed, under development or design, or being supported by it; (b) in each case, the machine-readable copy conforms to the corresponding source code listing; and (c) to the Knowledge of the Company in each case, it operates in accordance with the user manuals and technical documentation therefor without material operating defects. Except as set forth on Schedule 4.15(c), the Company has not disclosed or delivered to any escrow agent or to any other Person, or permitted the disclosure to any escrow agent or to any other Person of, and has taken all reasonable precautions to prevent the disclosure of the source code and the object code (or any of its Subsidiaries licenses (aspect or sublicensesportion thereof) for or relating to any of their respective (or their respective licensed) Software that is Company Owned Intellectual Property. Except as would set forth on Schedule 4.15(c), the Software does not have, individually or in the aggregate, a Material Adverse Effect on include and the Company has made all commercially reasonable efforts to prevent the introduction of and except as disclosed in to detect and remove undocumented computer instructions, circuitry or other means the Company SEC Reports intent of which is to access, modify, disrupt, damage, delete or Schedule 3.11:interfere with the use of the Software or the Company’s or third parties’ computer or telecommunications equipment or facilities.
(ad) Except as set forth on Schedule 4.15(d), (i) the Company is the registrant of all Internet domain names related to or used or held for use by the Company, or licensed to or used, owned, or registered by the Company (“Domain Names”), and each all registrations of its Subsidiaries owns, controls Domain Names are current and in good standing until such dates as set forth on Schedule 4.15(d); (ii) to the Knowledge of the Company no action or activity has been taken or is perpetually licensed pending to use (in each casechallenge rights to, free and clear of suspend, cancel or disable any liens or restrictions)Domain Name, all Intellectual Property used inthe registration therefor, or necessary for the conduct of, its business as currently conducted or as currently planned to be conducted;
(b) any right of the Company and its Subsidiaries are not infringing or otherwise violating the Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which the Company or any Subsidiary acquired thereto (including the right to use a Domain Name); and (iii) the Company has all rights, title and interest in and to, and rights to use on the Internet and otherwise as a trademark and trade name, the Domain Names. Except as set forth on Schedule 4.15(d), and without limiting anything else herein, to the Knowledge of the Company the Company is in compliance with all applicable United States laws, rules, requirements, directives and treaties regarding operations, business, transactions, commerce or activities operated, conducted or transacted, and regarding communications transmitted, received or stored, in whole or in part, via, through, over, in connection with, or related to the World Wide Web (“Web”) or the Internet, including the sale and purchase of goods and services, taxation and customs and duties, the supply of goods and services on credit, promotional activities and advertising, privacy and data protection, security and encryption, distance contracts, language requirements, storing and publishing and transferring information, and shipping and importing and exporting. Except as set forth on Schedule 4.15(d), (i) the Company has maintained in connection with its operations, activity, conduct, and business on the Web and any Intellectual Property and has all other applicable Internet operations, activity, conduct and business, at all times during such operations, activity, conduct and business, a right-to-written privacy statement or policy governing the collection, maintenance, and use the technology which it is presently using in its current commercial products;
(c) no person has commenced a proceeding in any court of data and information collected from users of Web sites owned, operated, or patent office worldwide challenging or claiming the invalidity or unenforceability maintained by, on behalf of, or contesting for the rights benefit of the Company (“Company Web Sites”); (ii) at all times during the Company’s Web or Internet operations, activity, conduct or business, the Company’s privacy statement or policy has been conspicuously made available to users of Company Web Sites, and such statement or policy, along with the Company’s collection, maintenance and use of user data and information and the execution of this Agreement and the consummation of the transactions contemplated hereby, comply in all respects with all applicable Laws, including Laws of the U.S. Federal Trade Commission; and (iii) the Company’s privacy statement or policy does not in any Subsidiary tomanner restrict or limit the Company’s or the Company’s successors’ rights to use, any Intellectual Property owned or controlled by and/or licensed to the Company or its Subsidiaries used in or necessary for the conduct of its business as currently conducted;
(d) neither the Company nor any of its Subsidiaries has received any written notice or otherwise has knowledge of any pending or threatened claimsell, order or proceeding with respect to any Intellectual Property ownedlicense, controlled, licensed or used by the Company or its Subsidiaries distribute and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of disclose such Intellectual Property;collected data.
(e) neither The Company has at all times employed all commercially reasonable efforts to detect and prevent the unauthorized access to and use of Company nor Web Sites and Company information technology systems, and no Person has obtained such unauthorized access or made such unauthorized use at any of its Subsidiaries: (i) is a party to any suittime since March 18, action or proceeding which involves a claim of infringement of2003, or breach of any license or agreement involvingexcept for automated inventory shopping and rate comparison tools, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party such as those used by hoteliers for infringement of, or breach of any license or agreement involving, any of the Intellectual Property owned by or licensed to the Company or its Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, the Company or any Subsidiary;
(g) the Company reporting purposes and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, "Intellectual Property" shall meanconsumers for comparison shopping.
Appears in 1 contract
Intellectual Property; Technology. Except as would not have a Material Adverse Effect or except as set forth in Schedule 3.11 lists all --------------------------------- 2.15, (a) to the Knowledge of the Company, the conduct of the business of the Company and the Subsidiaries as currently conducted does not infringe upon or misappropriate the Intellectual Property rights of any third party, and no claim has been asserted to the Company that the conduct of the business of the Company and the Subsidiaries as currently conducted infringes upon the Intellectual Property rights of any third party; (b) with respect to each item of Intellectual Property owned or used by the Company or any a Subsidiary of it Subsidiaries and all current license agreements, whether written or oral, pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Property. Except as would not have, individually or in the aggregate, a Material Adverse Effect on the Company and except as disclosed used in the Company SEC Reports or Schedule 3.11:
(a) the Company and each of its Subsidiaries owns, controls or is perpetually licensed to use (in each case, free and clear of any liens or restrictions), all Intellectual Property used in, or necessary for the conduct of, connection with its business as currently conducted or as currently planned to be conducted;
(b) the "Company and its Subsidiaries are not infringing or otherwise violating the Owned Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which Property"), the Company or any such Subsidiary acquired of the right to use any Company owns such Company Owned Intellectual Property free and has a right-to-use the technology which it is presently using in its current commercial products;
clear of all Encumbrances, other than Permitted Encumbrances; (c) no person has commenced a proceeding in any court or patent office worldwide challenging or claiming the invalidity or unenforceability of, or contesting the rights with respect to each item of the Company or any Subsidiary to, any Intellectual Property owned or controlled by and/or licensed to the Company or its Subsidiaries used a Subsidiary of the Company ("Company Licensed Intellectual Property"), the Company or such Subsidiary has the right to use such Company Licensed Intellectual Property in or necessary for the conduct continued operation of its respective business as currently conducted;
pursuant to the terms of the license agreement governing the use of such Company Licensed Intellectual Property; (d) the Company Owned Intellectual Property has not been adjudged invalid or unenforceable in whole or in part; (e) to the Knowledge of the Company, no person is engaging in any activity that infringes upon the Company Owned Intellectual Property; (f) each license governing the use of the Company Licensed Intellectual Property is valid and enforceable, is binding (except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability affecting or relating to the rights of creditors or by general principles of equity) on the Company or its Subsidiary and, to the Knowledge of the Company, all other parties to such license, and is in full force and effect; (g) neither the Company nor any of its Subsidiaries has received any written notice or otherwise has subsidiary is, and, to the knowledge of the Company, no other party to any pending license of the Company Licensed Intellectual Property is in breach thereof or threatened claim, order or proceeding default thereunder; and (h) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall adversely affect any of the Company's rights with respect to any the Company Owned Intellectual Property owned, controlled, licensed or used by the Company or its Subsidiaries and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of such Licensed Intellectual Property;
(e) neither the Company nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party for infringement of, or breach of any license or agreement involving, any of the Intellectual Property owned by or licensed to the Company or its Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, the Company or any Subsidiary;
(g) the Company and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, "Intellectual Property" shall mean.
Appears in 1 contract
Samples: Stock Purchase Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp)
Intellectual Property; Technology. Schedule 3.11 lists all --------------------------------- Except as would not have a Material Adverse Effect or except as set forth in Section 4.18 of the Company Disclosure Letter, (a) the conduct of the business of the Company and its subsidiaries as currently conducted does not infringe upon or misappropriate the Intellectual Property rights of any third party, and no claim has been asserted to the Company that the conduct of the business of the Company and its subsidiaries as currently conducted infringes upon the Intellectual Property rights of any third party; (b) with respect to each item of Intellectual Property owned or used by the Company or any a subsidiary of it Subsidiaries the company and all current license agreements, whether written or oral, pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Property. Except as would not have, individually or used in the aggregate, a Material Adverse Effect on the Company and except as disclosed in the Company SEC Reports or Schedule 3.11:
(a) the Company and each of its Subsidiaries owns, controls or is perpetually licensed to use (in each case, free and clear of any liens or restrictions), all Intellectual Property used in, or necessary for the conduct of, connection with its business as currently conducted or as currently planned to be conducted;
(b) the "Company and its Subsidiaries are not infringing or otherwise violating the Owned Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which Property"), the Company or any Subsidiary acquired such subsidiary of the right Company is the owner of the entire right, title and interest in and to use any such Company Owned Intellectual Property and has a right-to-use the technology which it is presently using in its current commercial products;
Property; (c) no person has commenced a proceeding in any court or patent office worldwide challenging or claiming the invalidity or unenforceability of, or contesting the rights with respect to each item of the Company or any Subsidiary to, any Intellectual Property owned or controlled by and/or licensed to the Company or its Subsidiaries used a subsidiary of the Company ("Company Licensed Intellectual Property"), the Company or such subsidiary has the right to use such Company Licensed Intellectual Property in or necessary for the conduct continued operation of its respective business as currently conducted;
pursuant to the terms of the license agreement governing the use of such Company Licensed Intellectual Property; (d) the Company Owned Intellectual Property is valid and enforceable, and has not been adjudged invalid or unenforceable in whole or in part; (e) to the knowledge of the Company, no person is engaging in any activity that infringes upon the Company Owned Intellectual Property; (f) each license governing the use of the Company Licensed Intellectual Property is valid and enforceable, is binding (except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability affecting or relating to the rights of creditors or by general principles of equity) on the Company or its subsidiary and, to the knowledge of the Company, all other parties to such license, and is in full force and effect; (g) neither the Company nor any of its Subsidiaries has received any written notice or otherwise has subsidiary is, and, to the knowledge of the Company, no other party to any pending license of the Company Licensed Intellectual Property is in breach thereof or threatened claim, order or proceeding default thereunder; and (h) neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall adversely affect any of the Company's rights with respect to any the Company Owned Intellectual Property owned, controlled, licensed or used by the Company or its Subsidiaries and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of such Licensed Intellectual Property;
(e) neither the Company nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party for infringement of, or breach of any license or agreement involving, any of the Intellectual Property owned by or licensed to the Company or its Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, the Company or any Subsidiary;
(g) the Company and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, . "Intellectual Property" shall meanmeans the United States and foreign trademarks, service marks, trade names, trade dress, domain names, logos, business and product names, and slogans including registrations and applications to register or renew the registration of any of the foregoing; copyrights and registrations or renewals thereof; United States and foreign letters patent and patent applications, including all reissues, continuations, divisions, continuations-in-part or renewals or extensions thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential business and technical information; software and computer programs of any kind whatsoever (including without limitation all modelling software in both source code and object code versions) and all documentation relating thereto; Internet websites; mask works and other semiconductor chip rights and registrations or renewals thereof; and all other intellectual property and proprietary rights, tangible embodiments of any of the foregoing (in any form or medium including electronic media), and licenses of any of the foregoing.
Appears in 1 contract
Intellectual Property; Technology. Schedule 3.11 lists (a) The Disclosure Letter sets forth a complete and correct list of all --------------------------------- Intellectual Property that is owned by the Company or any Subsidiary (the "Company-Owned Intellectual Property"), provided that Company-Owned Intellectual ------------------------------------ Property shall include, but the Disclosure Letter need not set forth, inventions, processes, formulae, trade secrets, know-how or confidential information that are not reduced to tangible form or that are not susceptible to legal protection by filing or registration with any Governmental Entity.
(b) Except as set forth in the Disclosure Letter, all the Intellectual Property used by the Company or any Subsidiary or held by it for future use in connection with, necessary for the conduct of or otherwise material to the operation of the business of the Company (the "Company Intellectual Property"), ----------------------------- is owned by the Company or such Subsidiary. Except as set forth in the Disclosure Letter, the Company or a Subsidiary has the exclusive right to use the Company Intellectual Property for the life thereof for the purpose or purposes for which it Subsidiaries is being used or intended to be used, free from (i) any - Encumbrances and (ii) any requirement of royalty payments, obligations, license -- fees, charges or other payments, or material conditions or restrictions whatsoever. Immediately after the Effective Time, the Surviving Corporation shall own or have licensed to it all current license agreementsthe Company Intellectual Property, whether in each case free from Encumbrances and on the same terms and conditions as in effect prior to the Effective Date.
(c) There is no Company Intellectual Property that the Company does not either own or have the right to use.
(d) The Disclosure Letter sets forth all written or oral, oral agreements and arrangements (i) pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Property. Except as would not have, individually or in the aggregate, a Material Adverse Effect on the Company and except as disclosed in the Company SEC Reports or Schedule 3.11:
(a) the Company and each of its Subsidiaries owns, controls or is perpetually Subsidiary has licensed to use (in each case, free and clear of any liens or restrictions), all - Intellectual Property used into, or necessary for the conduct of, its business as currently conducted or as currently planned to be conducted;
(b) the Company and its Subsidiaries are not infringing or otherwise violating the use of Intellectual Property of is otherwise permitted (through non-assertion, settlement or similar agreements or otherwise) with respect to, any person other Person, and are acting in accordance with any applicable license (ii) pursuant to which the Company or any a -- Subsidiary acquired the right has had Intellectual Property licensed to it, or has otherwise been permitted to use Intellectual Property (through non-assertion, settlement or similar agreements or otherwise). All of the agreements and arrangements set forth in the Disclosure Letter: (i) are in full force and effect and - enforceable in accordance with their terms, and no default exists or is threat ened thereunder by the Company or a Subsidiary or any other Person, (ii) license -- or permit that which they purport to license or permit, (iii) are free and clear --- of all Encumbrances, and (iv) do not contain any change in control or other -- terms or conditions that will become applicable or inapplicable as a result of the consummation of the trans actions contemplated by this Agreement or the Option Agreement.
(e) The conduct of the business of the Company and the Subsidiaries does not infringe any Intellectual Property and has a right-to-or other rights of any Person. None of the Company Intellectual Property is being infringed, misappropriated or otherwise used or available for use by any Person without written authority from the technology which it is presently using Company, except as set forth in its current commercial products;the Disclosure Letter.
(cf) no person No claim or demand of any Person has commenced a proceeding in been made or, to the knowledge of the Company, threatened, nor is there any court or patent office worldwide challenging or claiming litigation that is pending or, to the invalidity or unenforceability ofknowledge of the Company, or contesting threatened, that (i) challenges the rights of the - Company in respect of any Company Intellectual Property, (ii) asserts that the -- Company is infringing or otherwise in conflict with, or is (except as set forth in the Disclosure Letter) required to pay any Subsidiary royalty, license fee, charge or other amount with regard to, any Company Intellectual Property, or (iii) claims --- that any default exists under any agreement or arrangement set forth or required to be disclosed in the Disclosure Letter. None of the Company Intellectual Property owned is subject to any material outstanding order, ruling, decree, judgment or controlled stipulation by and/or licensed or with any court, tribunal, arbitrator or other Governmental Entity.
(g) The Company-Owned Intellectual Property has been duly registered with, filed in or issued by, as the case may be, the United States Patent and Trademark Office, the United States Copyright Office or other filing offices, domestic or foreign, to the extent necessary or desirable to ensure full protection under any applicable Laws. The Disclosure Letter sets forth a complete list of such Company-Owned Intellectual Property that is registered with, filed in or issued by, as the case may be, the United States Patent and Trademark Office, the United States Copyright Office or other filing offices, domestic or foreign, and such registrations, filings, issuances and other actions remain in full force and effect. Except as set forth in the Disclosure Letter, the Company and its Subsidiaries have taken all necessary actions to ensure full protection of the Company Intellectual Property under any applicable Law.
(h) The Company or its Subsidiaries used a Subsidiary has valid licenses to all copies of all Software that it utilizes in or necessary for connection with the conduct of its business as currently conducted;
and that it does not own (d) neither "Commercial Software"), and the use by the Company nor any or such ------------------- Subsidiary of such Commercial Software, including without limitation all modifications and enhancements thereto (whether created by the Company or by a third party) is in full compliance with the terms and provisions of such licenses. The Company or such Subsidiary owns all right, title and interest in and to all Software marketed or licensed by it to its customers or held for use or in development for marketing and licensing to its customers (collectively, the "Company Software"), including but not limited to all Intellectual Property ---------------- rights therein and thereto, except for Commercial Software identified in the Disclosure Letter as Software incorporated into the Company Software. Set forth in the Disclosure Letter is a full and complete list of (i) the Company Software - and (ii) all Commercial Software utilized by the Company or a Subsidiary in -- connection with the conduct of its Subsidiaries has received business. None of the Commercial Software or Company Software, and no use thereof by the Company or permitted use by its licensees, infringes upon or violates any written notice patent, copyright, trade secret or otherwise has knowledge other Intellectual Property right of any pending person or threatened claimentity, order and no claim or proceeding demand with respect to any Intellectual Property ownedsuch infringement or violation has been made or, controlledto the best knowledge of the Company, threatened. There are no defects in the Company Software that would prevent such Software from performing in all material respects the tasks and functions that it was intended to perform except those which can be cured without a Material Adverse Effect.
(i) The Company has conducted an inventory of all (i) Company Software - and (ii) Software owned or licensed or by it as well as the hardware and embedded -- microcontrollers in non-computer equipment used by the Company in connection with, necessary for or its Subsidiaries and no Intellectual Property owned, controlled and/or licensed or used by otherwise material to the Company or its Subsidiaries is being used or enforced in a manner that would reasonably be expected to result in the abandonment, cancellation or unenforceability of such Intellectual Property;
(e) neither the Company nor any operation of its Subsidiaries: business (icollectively, the "Computer Systems") is a party in order to any suit, action or proceeding determine which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party for infringement of, or breach of any license or agreement involving, any parts of the Intellectual Property owned by or licensed ---------------- Computer Systems are not Year 2000 Compatible and to estimate the Company or its Subsidiaries;
(f) cost of rendering such Computer Systems Year 2000 Compatible prior to January 1, 2000. Based on the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or toabove-referenced inventory, the Company represents and warrants that the Computer Systems are either Year 2000 Compatible or any Subsidiary;
will be Year 2000 Compatible prior to July 1, 1999; the estimated cost of rendering the Computer Systems Year 2000 Compatible is $50,000, of which $50,000 has been or will be incurred by the Company. "Year ---- 2000 Compatible" means that the Computer Systems to the extent required for --------------- their particular use (gx) the Company correctly perform date data century recognition, and each of its Subsidiaries believes - calculations that it has taken all reasonable accommodate same century and appropriate steps multi-century formulas and date values; (y) operate or are expected to protect operate on a basis comparable to their - current operation during and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned byafter calendar year 2000 A.D., or licensed to, the Company or such Subsidiaryincluding but not limited to leap years; and (8) For purpose s z) shall not end abnormally or provide invalid or - incorrect results as a result of this Agreement, "Intellectual Property" shall meandate data which represents or references different centuries or more than one century.
Appears in 1 contract
Intellectual Property; Technology. (a) Schedule 3.11 lists 2.14(a) sets forth a true and complete list of all --------------------------------- material Company Intellectual Property owned or used by the Company or any of it Subsidiaries and all current license agreementsjurisdictions where such Company Intellectual Property is registered or protected or where applications have been filed, whether written or oraltogether with all patent, pursuant to which the Company or any of its Subsidiaries licenses (or sublicenses) any of their respective (or their respective licensed) Intellectual Propertyregistration and applications numbers. Except as set forth on Schedule 2.14(a), the Company and each of the Subsidiaries own (and, on the Closing Date, after giving effect to the Bankruptcy Plan and the Schemes of Arrangement, New GX and the Subsidiaries will own) exclusively and have the exclusive and unrestricted right to use, or, in the case of licensed rights, have valid rights to use, the Company Intellectual Property, free and clear of all Encumbrances, except when such failure to own or possess the right to use would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company and except as disclosed in the Company SEC Reports or Schedule 3.11:
(a) the Company and each of its Subsidiaries owns, controls or is perpetually licensed to use (in each case, free and clear of any liens or restrictions), all Effect. No other Intellectual Property used in, or right is necessary for the conduct of, its business as currently conducted or as currently planned to be conducted;
(b) of the Company and its Subsidiaries are not infringing or otherwise violating the Intellectual Property of any person and are acting in accordance with any applicable license pursuant to which the Company or any Subsidiary acquired the right to use any Intellectual Property and has a right-to-use the technology which it is presently using in its current commercial products;
(c) no person has commenced a proceeding in any court or patent office worldwide challenging or claiming the invalidity or unenforceability of, or contesting the rights businesses of the Company or any Subsidiary toas presently conducted except for such right the failure to possess would not reasonably be likely to have, any individually or in the aggregate, a Material Adverse Effect. The Company Intellectual Property owned is valid and enforceable, except as would not reasonably be expected to result in a Material Adverse Effect.
(b) Except as set forth on Schedule 2.14(b), or controlled by and/or licensed as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) the Company Intellectual Property and the businesses of the Company and the Subsidiaries (as presently and proposed to be conducted) do not infringe upon, violate or its Subsidiaries used misappropriate the rights of any Person, (ii) the consummation of the transactions contemplated hereby will not result in the loss or necessary for impairment of any of the conduct Company Intellectual Property, or any right pertaining thereto, and (iii) the Company and each Subsidiary have taken all reasonable precautions and security measures to protect the secrecy, confidentiality and value of its business trade secrets. Except as currently conducted;
set forth on Schedule 2.14(b), (dA) neither the Company nor any Subsidiary is aware of its Subsidiaries any infringement or unauthorized use by any Person of any of the Company Intellectual Property, and (B) the Company Intellectual Property (including the validity and title thereto) has received not been questioned in or the subject of any written notice prior Litigation, is not being questioned in or otherwise has knowledge the subject of any pending Litigation, and, to the Knowledge of the Company, is not the subject of any threatened or threatened claimproposed Litigation, order or proceeding with respect to any Intellectual Property owned, controlled, licensed or used by the Company or its Subsidiaries and no Intellectual Property owned, controlled and/or licensed or used by the Company or its Subsidiaries is being used or enforced except in a manner that each case for such Litigation which would not reasonably be expected to result have, individually or in the abandonmentaggregate, cancellation or unenforceability of such Intellectual Property;
(e) neither the Company nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement of, or breach of any license or agreement involving, any Intellectual Property of any third party; or (ii) has brought any action, suit or proceeding against any third party for infringement of, or breach of any license or agreement involving, any of the Intellectual Property owned by or licensed to the Company or its Subsidiaries;
(f) to the Company's knowledge, there are no unauthorized uses, disclosures, infringements or misappropriation of any Intellectual Property owned by, or licensed by or to, the Company or any Subsidiary;
(g) the Company and each of its Subsidiaries believes that it has taken all reasonable and appropriate steps to protect and preserve the confidentiality of all of the trade secrets and other non-public know-how and proprietary information owned by, or licensed to, the Company or such Subsidiary; and (8) For purpose s of this Agreement, "Intellectual Property" shall meanMaterial Adverse Effect.
Appears in 1 contract
