Intellectual Property; Year 2000. (a) The Company Schedule lists each patent or registered copyright, trademark, service xxxx and any pending application filed for any of the foregoing of the Company and its Subsidiaries. Except as set forth in the Company Schedule, the Company and each of its Subsidiaries owns, or is licensed pursuant to fully-paid (other than upgrade costs and purchaser maintenance costs), perpetual licenses to use, or otherwise possesses or has legally enforceable rights to use, all software (including object and source codes and all related manuals and other documentation), firmware, copyrights, patents, trademarks, service marks, trade names, trade secrets and proprietary technologies, know-how, and all other inventions, discoveries, improvements, processes and formulas (secret or otherwise) and any related documentation thereto used or possessed by or related to the Company and to any Subsidiary or necessary for the current conduct of the business of the Company or of any Subsidiary (the "Intellectual Properties"). (b) The Company and its Subsidiaries are not, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of the transactions contemplated hereby, in violation of any licenses, sublicenses and other Contracts to which the Company or any of its Subsidiaries is a party and pursuant to which the Company or any Subsidiary is authorized to use any patent, copyright, trademark, trade name, service xxxx or any other form of intellectual property or trade secret owned by a third party. (c) To the knowledge of the Company, all copyrights, patents, trademarks, service marks and trade names held by the Company and its Subsidiaries are valid and subsisting, except for any failures so to be valid and subsisting that, individually or in the aggregate, would not have a Company Material Adverse Effect. (d) Except as set forth in the Company Schedule, no present or former employee of, or consultant to, the Company or, to the knowledge of the Company, any other person (including, without limitation, any former employer of a present or former employee or consultant of the Company) has any proprietary, commercial or other interest, direct or indirect, in the Intellectual Properties. (e) To the knowledge of the Company, all of the Intellectual Properties owned by the Company or by any Subsidiary have been adequately protected by patents, trade secret processes, non-disclosure agreements, and, where appropriate, by affixing a copyright notice to any such Intellectual Properties, and the Company has not received notice from a third party of any claim of infringement or any other claims relating to any such Intellectual Properties. (f) In conducting their respective business as presently conducted, to the knowledge of the Company, except as disclosed in the Company Schedule, neither the Company nor any Subsidiary is infringing upon or unlawfully or wrongfully using any patent, copyright, trademark, trade name, service xxxx or any other form of intellectual property or trade secret owned or claimed by another. Neither the Company nor any Subsidiary is in default under, nor has it received any notice of any claim of infringement or any other claim or proceeding relating to, any such patent, copyright, trademark, trade name, service xxxx, trade secret or any other form of intellectual property or any agreement relating thereto. (g) To the Company's knowledge, there is no unauthorized use, infringement or misappropriation of any of the Intellectual Properties by any third party, including any of the Company's or any of its Subsidiaries' employees or former employees. (h) To the knowledge of the Company, all information technology (including, without limitation, software and firmware) used by the Company or by any Subsidiary, including, without limitation, in all services and products provided by the Company or any such Subsidiary, whether to third parties or for internal use, or, to the knowledge of the Company after reasonable investigation, used in combination with any information technology of its customers or suppliers, accurately processes date and time data (including, without limitation, calculating, comparing and sequencing) from, into and between the years 1999 and 2000 and the twentieth century and the twenty-first century, including leap year calculations and neither performance nor functionality of such technology will be affected by dates prior to, during and after the year 2000. Neither the Company nor any Subsidiary has any obligations under warranty agreements, service agreements or otherwise to remedy any information technology defect relating to the year 2000.
Appears in 2 contracts
Samples: Merger Agreement (Noodle Kidoodle Inc), Agreement and Plan of Merger (Zany Brainy Inc)
Intellectual Property; Year 2000. (a) The Company Schedule lists each patent or registered copyright, trademark, service xxxx and any pending application filed for any of the foregoing of the Company and its Subsidiaries. Except as set forth in the Company Schedule, the Company and each of its Subsidiaries owns, or is licensed pursuant to fully-paid (other than upgrade costs and purchaser maintenance costs), perpetual licenses to use, or otherwise possesses entitled to exercise all rights under or has legally enforceable rights to usewith respect to, all software (including object and source codes and all related manuals and other documentation), firmware, copyrights, material patents, trademarks, trade names, service marks, trade namescopyrights, any applications for any of the foregoing, formulae, processes, designs, schematics, compositions, ideas, technology, know-how and tangible or intangible proprietary information, trade secrets and proprietary technologies, know-how, and all other inventions, discoveries, improvements, processes and formulas (secret or otherwise) and any related documentation thereto used material employed in or possessed by or related to the Company and to any Subsidiary or otherwise necessary for the current conduct operation of the business of the Company or of any Subsidiary as currently conducted (the "Intellectual PropertiesProperty"). Schedule 3.18(a) lists all patents, registered and unregistered copyrights, registered and unregistered trademarks, trade names, service marks, and any applications for any of the foregoing Intellectual Property and specifies the jurisdictions in which each such issuance and registration has been filed, including the respective registration or application numbers.
(b) Schedule 3.18(b) lists all material licenses, sublicenses and other agreements as to which the Company is a party and pursuant to which the Company or any other person owns or is licensed or otherwise authorized or obligated with respect to any Intellectual Property and includes the identity of all parties thereto. The Company has not and its Subsidiaries are is not, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of the transactions contemplated herebyCompany's obligations hereunder will be, in violation of any material license, sublicense or other agreement applicable to it. For purposes of Schedule 3.18(b), material licenses, sublicenses and other Contracts agreements shall not include such licenses and sublicenses attributable to which standard, noncustomized or "shrinkwrap" software, software for personal computer operating systems provided when the Company or any of its Subsidiaries is a party computer was purchased, and pursuant to which the Company or any Subsidiary is authorized licenses to use any patent, copyright, trademark, trade name, service xxxx or any other form software for personal computers that are granted to retail purchasers of intellectual property or trade secret owned by a third partysuch software.
(c) To Except for the knowledge licenses and agreements set forth in Schedule 3.18(b), the Company (i) is the sole and exclusive owner of all copyrights (whether registered or not) covering all works of authorship which are copied, in whole or in part, and with or without modification in the Company's current products, all applications for registration of such copyrights, patents, and all trademarks, service marks and similar rights (whether registered or not) used in connection with such products; (ii) has not disclosed any of its confidential know-how, trade names held by secrets or similar rights subsisting based on their confidentiality which the Company and uses or proposes to use to make or sell its Subsidiaries are valid and subsistingproducts, other than to employees, consultants or distributors of the Company who have entered written agreements not to disclose such rights of the Company, except for any failures so to be valid where such disclosure has not and subsisting that, individually or in the aggregate, would will not have a Company Material Adverse Effect; and (iii) is not contractually obligated to pay any compensation to any third party with respect to any Intellectual Property, whether for the use, license, conveyance thereof, for any service which resulted in the creation thereof, or otherwise.
(d) Except as set forth in No claims with respect to the Company Schedule, no present or former employee of, or consultant to, the Company Intellectual Property have been asserted or, to the knowledge of the CompanyCompany and each Selling Shareholder, are or are likely to be threatened by any other person Person, nor does the Company or any Selling Shareholder know of any grounds for any claims now or in the future (including, without limitation, i) to the effect that any former employer of a present or former employee or consultant product of the Company) Company or any business of the Company as previously or currently conducted infringes on or misappropriates any intellectual property rights in which a third party has any proprietaryrights, commercial or other interest(ii) challenging the ownership, direct validity or indirect, in the Intellectual Properties.
(e) To the knowledge effectiveness of the Company, all any of the Intellectual Properties owned by the Company or by any Subsidiary have been adequately protected by patents, trade secret processes, non-disclosure agreements, and, where appropriate, by affixing a copyright notice Property. No Intellectual Property is subject to any such Lien or Encumbrance. All Intellectual Properties, Property is valid and the Company has not received notice from a third party of any claim of infringement or any other claims relating to any such Intellectual Properties.
(f) In conducting their respective business as presently conducted, to the knowledge of the Company, except as disclosed in the Company Schedule, neither the Company nor any Subsidiary is infringing upon or unlawfully or wrongfully using any patent, copyright, trademark, trade name, service xxxx or any other form of intellectual property or trade secret owned or claimed by another. Neither the Company nor any Subsidiary is in default under, nor has it received any notice of any claim of infringement or any other claim or proceeding relating to, any such patent, copyright, trademark, trade name, service xxxx, trade secret or any other form of intellectual property or any agreement relating thereto.
(g) To the Company's knowledge, subsisting and there is no material unauthorized use, infringement or misappropriation of any of the Intellectual Properties Property by any third party, including any employee. Except pursuant to the terms of a license agreement set forth in Schedule 3.18(b), no Intellectual Property is subject to any outstanding order, judgment, decree, stipulation or agreement restricting in any manner the licensing or exploitation thereof by the Company's or any of its Subsidiaries' employees or former employees.
(he) To Except as set forth in Schedule 3.18(e), the knowledge Company has not entered into any agreement to indemnify any other person against any charge of infringement relating to any Intellectual Property. No employee of the CompanyCompany is in violation of any term of any employment contract (whether written or verbal), all information technology (including, without limitation, software and firmware) used by nondisclosure agreement or any other contract or agreement relating to the relationship of any such employee with the Company or by any Subsidiary, including, without limitation, in all services and products provided by the Company or any such Subsidiary, whether to third parties or for internal use, or, to the knowledge of the Company after reasonable investigationand the Selling Shareholders, any other party (including prior employers) because of the nature of the business conducted by the Company.
(f) All of the Intellectual Property owned by the Company immediately prior to the Closing will be owned by the Company immediately subsequent to the Closing hereunder, and all of the Intellectual Property used by the Company immediately prior to the Closing hereunder will be available for use by the Company on identical terms and conditions immediately subsequent to the Closing hereunder.
(g) The Intellectual Property engineered, designed or developed by or for the Company are "Year 2000 Compliant." To the Company's and the Selling Shareholders' knowledge all other Intellectual Property owned, used in combination or interfaced by or with any information technology of its customers or suppliersthe Company are Year 2000 Compliant. Year 2000 Compliant shall mean software programs that accurately process, accurately processes date calculate, compare, sequence, transmit and receive date/time data (including, without limitation, calculating, comparing and sequencing) from, into into, and between the 20th and 21st centuries and the years 1999 and 2000 and the twentieth century and the twenty-first century, including leap year calculations and neither performance nor will not create any logical or mathematical inconsistency or malfunction or cease to function when processing date/time data. The Company has reviewed the functionality of such technology will be affected by dates prior to, during and after the software programs for year 2000. Neither the Company nor any Subsidiary has any obligations under warranty agreements, service agreements or otherwise 2000 compliance according to remedy any information technology defect relating to the year 2000reasonable industry standards.
Appears in 1 contract
Samples: Merger Agreement (Autobytel Com Inc)
Intellectual Property; Year 2000. (a) The Company Schedule lists each patent or registered copyright, trademark, service xxxx and any pending application filed for any of the foregoing of the Company and its Subsidiaries. Except as set forth in the Company Schedule, the Company and each of its Subsidiaries owns, or is licensed pursuant to fully-paid (other than upgrade costs and purchaser maintenance costs), perpetual licenses to use, or otherwise possesses or has legally enforceable rights to use, all software (including object and source codes and all related manuals and other documentation), firmware, copyrights, patents, trademarks, service marks, trade names, trade secrets and proprietary technologies, know-how, and all other inventions, discoveries, improvements, processes and formulas (secret or otherwise) and any related documentation thereto used or possessed by or related to the Company and to any Subsidiary or necessary for the current conduct of the business of the Company or of any Subsidiary (the "Intellectual Properties").. -----------------------
(b) The Company and its Subsidiaries are not, nor will any of them be as a result of the execution and delivery of this Agreement or the performance of the transactions contemplated hereby, in violation of any licenses, sublicenses and other Contracts to which the Company or any of its Subsidiaries is a party and pursuant to which the Company or any Subsidiary is authorized to use any patent, copyright, trademark, trade name, service xxxx or any other form of intellectual property or trade secret owned by a third party.
(c) To the knowledge of the Company, all copyrights, patents, trademarks, service marks and trade names held by the Company and its Subsidiaries are valid and subsisting, except for any failures so to be valid and subsisting that, individually or in the aggregate, would not have a Company Material Adverse Effect.
(d) Except as set forth in the Company Schedule, no present or former employee of, or consultant to, the Company or, to the knowledge of the Company, any other person (including, without limitation, any former employer of a present or former employee or consultant of the Company) has any proprietary, commercial or other interest, direct or indirect, in the Intellectual Properties.
(e) To the knowledge of the Company, all of the Intellectual Properties owned by the Company or by any Subsidiary have been adequately protected by patents, trade secret processes, non-disclosure agreements, and, where appropriate, by affixing a copyright notice to any such Intellectual Properties, and the Company has not received notice from a third party of any claim of infringement or any other claims relating to any such Intellectual Properties.
(f) In conducting their respective business as presently conducted, to the knowledge of the Company, except as disclosed in the Company Schedule, neither the Company nor any Subsidiary is infringing upon or unlawfully or wrongfully using any patent, copyright, trademark, trade name, service xxxx or any other form of intellectual property or trade secret owned or claimed by another. Neither the Company nor any Subsidiary is in default under, nor has it received any notice of any claim of infringement or any other claim or proceeding relating to, any such patent, copyright, trademark, trade name, service xxxx, trade secret or any other form of intellectual property or any agreement relating thereto.
(g) To the Company's knowledge, there is no unauthorized use, infringement or misappropriation of any of the Intellectual Properties by any third party, including any of the Company's or any of its Subsidiaries' employees or former employees.
(h) To the knowledge of the Company, all information technology (including, without limitation, software and firmware) used by the Company or by any Subsidiary, including, without limitation, in all services and products provided by the Company or any such Subsidiary, whether to third parties or for internal use, or, to the knowledge of the Company after reasonable investigation, used in combination with any information technology of its customers or suppliers, accurately processes date and time data (including, without limitation, calculating, comparing and sequencing) from, into and between the years 1999 and 2000 and the twentieth century and the twenty-first century, including leap year calculations and neither performance nor functionality of such technology will be affected by dates prior to, during and after the year 2000. Neither the Company nor any Subsidiary has any obligations under warranty agreements, service agreements or otherwise to remedy any information technology defect relating to the year 2000.
Appears in 1 contract
Samples: Merger Agreement (Zany Brainy Inc)
Intellectual Property; Year 2000. (a) The Company Schedule lists and/or each patent or registered copyright, trademark, service xxxx and any pending application filed for any of the foregoing of the Company and its Subsidiaries. Except as set forth in the Company Schedule, the Company and each of its Continuing Subsidiaries owns, or is licensed pursuant to fully-paid (other than upgrade costs and purchaser maintenance costs), perpetual licenses to use, or otherwise possesses or has legally enforceable rights to use, all software (including object and source codes and all related manuals and other documentation), firmware, copyrights, patents, trademarks, trade names, service marks, trade namescopyrights, trade secrets and proprietary technologiesany applications therefor, technology, know-how, computer software programs or applications, and all other inventions, discoveries, improvements, processes and formulas (secret tangible or otherwise) and any related documentation thereto intangible proprietary information or materials that are used or possessed by or related to the Company and to any Subsidiary or necessary for the current conduct of in the business of the Company and the Continuing Subsidiaries as currently conducted, except for any such failures to own, be licensed or possess that would not be reasonably likely to, individually or in the aggregate, have a Material Adverse Effect, and all of such intellectual property is sufficient to conduct the business of the Company and the Continuing Subsidiaries as currently conducted. All patents, trademarks, trade names, service marks and copyrights owned by the Company and/or the Continuing Subsidiaries are valid, except for any Subsidiary (such items the "Intellectual Properties")absence of which would not be reasonably likely to, individually or in the aggregate, have a Material Adverse Effect.
(b) The Except as disclosed in Schedule 3.22 or as would not be reasonably likely to, individually or in the aggregate, have a Material Adverse Effect:
(i) neither the Company and its nor any of the Continuing Subsidiaries are notis, nor will any of them it be as a result of the execution and delivery of this Agreement or the performance of the transactions contemplated herebyits obligations hereunder, in violation of any licenses, sublicenses and or other Contracts agreements as to which the Company or any of its the Continuing Subsidiaries is a party and pursuant to which the Company or any Subsidiary of the Continuing Subsidiaries is authorized to use any patent, copyright, trademark, trade name, service xxxx or any other form of intellectual property or trade secret owned by a third party.
(c) To the knowledge of the Company, all copyrights, third-party patents, trademarks, service marks marks, or copyrights ("Third-Party Intellectual Property Rights");
(ii) no claims with respect to (A) the patents, registered and unregistered trademarks and service marks, registered copyrights, trade names held names, and any applications therefor owned by the Company and its or any of the Continuing Subsidiaries are valid and subsisting, except for (the "Intellectual Property Rights"); (B) any failures so trade secret material to be valid and subsisting that, individually or in the aggregate, would not have a Company Material Adverse Effect.
(d) Except as set forth in the Company Scheduleor the Continuing Subsidiaries; or (C) Third-Party Intellectual Property Rights, no present or former employee of, or consultant to, the Company are pending or, to the knowledge of the CompanySeller, threatened by any other person (including, without limitation, any former employer of a present or former employee or consultant of the Company) has any proprietary, commercial or other interest, direct or indirect, in the Intellectual Properties.Person; and
(eiii) To the knowledge of the Company, all of the Intellectual Properties owned by the Company or by any Subsidiary have been adequately protected by patents, trade secret processes, non-disclosure agreements, and, where appropriate, by affixing a copyright notice to any such Intellectual Properties, and the Company has not received notice from a third party of any claim of infringement or any other claims relating to any such Intellectual Properties.
(f) In conducting their respective business as presently conducted, to the knowledge of the Company, except as disclosed in the Company Schedule, neither the Company nor any Subsidiary is infringing upon or unlawfully or wrongfully using any patent, copyright, trademark, trade name, service xxxx or any other form of intellectual property or trade secret owned or claimed by another. Neither the Company nor any Subsidiary is in default under, nor has it received any notice of any claim of infringement or any other claim or proceeding relating to, any such patent, copyright, trademark, trade name, service xxxx, trade secret or any other form of intellectual property or any agreement relating thereto.
(g) To the Company's knowledgeSeller, there is no unauthorized use, infringement or misappropriation of any of the Intellectual Properties Property Rights by any third party, including any of the Company's or any of its Subsidiaries' employees or former employeesEmployee.
(hc) To the knowledge of the Company, all information technology (including, without limitation, All computer systems and computer software and firmware) used by the Company or by any Subsidiaryof its Continuing Subsidiaries (i) recognize or are being adapted so that, includingprior to December 31, without limitation1999, in all services and products provided by they shall recognize the Company or any such Subsidiary, whether to third parties or for internal use, or, to the knowledge advent of the Company after reasonable investigation, used in combination with any information technology of its customers or suppliers, accurately processes date and time data (including, without limitation, calculating, comparing and sequencing) from, into and between the years 1999 and 2000 and the twentieth century and the twenty-first century, including leap year calculations and neither performance nor functionality of such technology will be affected by dates prior to, during and after the year 2000. Neither the Company nor any Subsidiary has any obligations under warranty agreements, service agreements or otherwise to remedy any information technology defect relating to the year 2000.A.
Appears in 1 contract
