Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees. (b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect. (c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary. (d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)). (e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person. (f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (DUKE REALTY LTD PARTNERSHIP/), Merger Agreement (Prologis, L.P.)
Intellectual Property. (a) Within ten (10Section 3.12(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of (i) all Intellectual Property owned by the each Group Company or any (“Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with ) and (ii) all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesCompany IP Agreements.
(b) To Except as set forth in Section 3.12(b) of the Company’s KnowledgeDisclosure Schedule, each Group Company is the exclusive owner of the entire and unencumbered right, title and interest in and to the Company Intellectual Property, and has a valid license to use the Licensed Intellectual Property in connection with the Business. Each Group Company is entitled to use all Company Intellectual Property and the Licensed Intellectual Property in the continued operation of its Business without limitation, subject only to the terms of the Company IP Agreements.
(c) The Company Intellectual Property and the Licensed Intellectual Property, to the Knowledge of the Warrantors, include all of the Intellectual Property required for the conduct of or used in connection with the Business, and there are no other items of Intellectual Property that are material to the conduct of the business Business. The Company Intellectual Property and, to the Knowledge of the Warrantors, the Licensed Intellectual Property are subsisting, valid and enforceable, and have not been adjudged invalid or unenforceable in whole or part. Each item of Company Intellectual Property registered with a Government Authority is in compliance with all applicable Laws, and all filings, payments and other actions required to be made or taken to maintain such Intellectual Property rights in full force and effect have been made or taken in all material respects. Except as set forth in Section 3.12(c) of the Disclosure Schedule, no item of Company Intellectual Property registered with a Government Authority has lapsed or expired or is scheduled to lapse or expire within the next twelve (12) months hereafter.
(d) The conduct of the Business and the use of the Company Intellectual Property and the Company Subsidiaries as it is currently conducted and planned to be conducted does Licensed Intellectual Property, do not conflict with, infringe, misappropriate or otherwise violate any the Intellectual Property rights of any third party party, and no Action alleging any of the foregoing is pending, and no claim has been asserted against any Group Company has not received alleging any written allegations to that effect.
(c) of the foregoing. To the Company’s KnowledgeKnowledge of the Warrantors, there are no third party is currently misappropriating, infringing infringements or otherwise violating other violations of any Company Intellectual Property rights by any third party. No Company Intellectual Property is subject to any pending, or to the Knowledge of the Warrantors, threatened Order or Action challenging or restricting the use of such Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct or that would impair the business validity or enforceability of the such Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(e) To Except as set forth in Section 3.12(e) of the Company’s KnowledgeDisclosure Schedule, none of the Group Companies has granted in writing any license or other right to any third party with respect to the Company Intellectual Property or Licensed Intellectual Property. Neither the execution, delivery and performance of this Agreement or the other Transaction Documents nor the consummation of any of the transactions contemplated hereby or thereby will alter or impair the Company Intellectual Property or Licensed Intellectual Property.
(f) Except as set forth in Section 3.12(f) of the Disclosure Schedule, the Founders, the directors of each Group Company, current and former employee employed, and current and former consultant engaged, by each Group Company as of the Closing is under written obligation for the benefit of the Group Companies, to maintain in confidence all confidential and proprietary information acquired by them during the course of their employment and all rights and title to and ownership of all inventions made by them within the scope of their employment during such employment and for a reasonable period thereafter are vested in and remain with the Group Companies. Each Group Company Subsidiaries have has taken commercially reasonable measures to protect the secrecy, and confidentiality of all of their material trade secrets and any other material confidential information and, to the Knowledge of the Company, there has been no unauthorized disclosure of any material data or information which, but for any such unauthorized disclosure, such Group Company and the Company Subsidiaries (and any confidential information would consider to be a material trade secret owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the such Group Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Share Subscription Agreement (Sunlands Online Education Group), Share Subscription Agreement (Sunlands Online Education Group)
Intellectual Property. (a) Within ten (10Section 4.21(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets owned or used by the Company or any Company Subsidiary (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) yearssince January 1, 2020, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Extra Space Storage Inc.), Merger Agreement (Life Storage Lp)
Intellectual Property. (a) Within ten (10Without limiting the definition of Transferred Intellectual Property, Schedule 1.1(a)(ix) Business Days following the date of this Agreement, the Company shall provide Parent with sets forth a correct and complete list of all material Patents, Marks, registered Copyrights, proprietary Software, and Contracts conveying Intellectual Property rights that are Transferred Intellectual Property, and without limiting the definition of Company Intellectual Property, Schedule 3.12(a) sets forth a list of all material Patents, Marks, registered Copyrights, proprietary Software, and Contracts conveying Intellectual Property rights that are Intellectual Property owned by any Company. Without limiting the Company or any Company Subsidiary that is the subject definition of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Licensed Intellectual Property”, Schedule 3.12(a)(6), together with (a)(7) and (8) sets forth a list of all material unregistered trademarks. To the Company’s KnowledgePatents (including identification of those Patents that are Subject Inventions), all material Registered Marks, registered Copyrights and proprietary Software that are Licensed Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesProperty.
(b) To Except for Subject Inventions, the Company’s Knowledgeapplicable member of the Company Group: (i) exclusively owns the entire right, title and interest in and to the Transferred Intellectual Property and the Company Intellectual Property, free and clear of Encumbrances except for Permitted Encumbrances and Encumbrances that will be released at or prior to the Closing; (ii) with respect to the Licensed Intellectual Property, owns or Controls sufficient right, title and interest in and to the Licensed Intellectual Property to license such Intellectual Property to the Buyer on or prior to the Closing Date pursuant to the terms and conditions of, as applicable, the Buyer License Agreement; or (iii) with respect to the Transferred Intellectual Property and the Company Intellectual Property which a member of the Company Group jointly owns with another Person, all of which is set forth in Schedule 3.12(b), such member of the Company Group has the right and license to use (including to license for use) the same in the conduct of the business Business, as applicable, and to transfer all of such member’s rights and licenses to the Buyer as of the Closing Date as contemplated herein. Except for (A) Subject Inventions, (B) nonexclusive licenses conveyed pursuant to Seller’s standard terms for purchase or sale of goods and services, (C) licenses listed on Schedule 3.12(a)(10), and (D) any licenses to use data or other deliverables provided under Government Contracts, no member of the Company and the Group has granted any Out-License for use of any material Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights or Transferred Intellectual Property. Except for the licenses listed on Schedules 1.1(a)(ix)(6) and 3.12(a)(9), none of any third party and the Transferred Intellectual Property or Company has not received any written allegations Intellectual Property is subject to that effecta material In-License.
(c) To the Company’s KnowledgeKnowledge of the Seller, no third party is currently misappropriatingas of the Closing Date, infringing or otherwise violating any (i) all Transferred Intellectual Property rights Patents, Company Intellectual Property Patents and Patents included in the HSR Assets, including those listed in Schedules 1.1(a)(ix), 3.12(a), and 6.17(a)(i), that have issued are in force (other than Patents that have expired at the end of their non-renewable statutory term); (ii) all such Patents that are applications, are pending without challenge (other than office actions that may be pending in the ordinary course before the United States Patent and Trademark Office or its foreign equivalents); (iii) all registrations of registered Marks listed in Schedule 1.1(a)(ix) are in force; and (iv) all registration, maintenance and renewal fees currently due in connection with listed Patents and listed registrations of registered Transferred Intellectual Property, Company Intellectual Property and Patents included in the HSR Assets in Schedules 1.1(a)(ix), 3.12(a) and 6.17(a)(i) have been or any Company Subsidiarywill be timely paid.
(d) Except as has not hadset forth on Schedule 3.12(d), and would not reasonably be expected to have, individually (i) there are no valid U.S. third party intellectual property rights that materially impair the Seller’s or in the aggregate, a Company Material Adverse Effect, Companies’ conduct of the Company and Business or will materially adversely impact the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary Buyer’s right to conduct the business Business as it is conducted at the time of the Closing, (ii) during the previous six (6) years the Seller has not received any written claim, and no litigation, arbitration or administrative proceeding (except routine patent office proceedings) is currently pending and has been served against any member of the Company Group alleging the same; and (iii) during the previous (6) years Seller has not received any written claim, and no litigation, arbitration or administrative proceeding (except routine patent office proceedings) is currently pending against any member of the Company Subsidiaries as it is currently conducted; providedGroup that challenges the ownership, howevervalidity, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute enforceability, patentability, registrability or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation use of any material Company Intellectual Property, Transferred Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))or Licensed Intellectual Property.
(e) To the Company’s Knowledge, The members of the Company and the Company Subsidiaries Group have taken commercially reasonable measures actions to maintain and protect the confidentiality of all trade secrets and any other material confidential information of the Company Intellectual Property, Transferred Intellectual Property and the Company Subsidiaries (Licensed Intellectual Property, including adopting commercially reasonable policies and procedures to protect any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonIntellectual Property.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling To the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have notKnowledge of the Seller, in the past three last six (36) years, experienced there has been no unauthorized use, unauthorized disclosure, infringement or misappropriation of any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and Intellectual Property, Transferred Intellectual Property or Licensed Intellectual Property by any third party, including any employee or former employee of any member of the Company Subsidiaries as they are currently conductedGroup. In the last six (6) years, no member of the Company Group has initiated any Action for infringement or misappropriation of any Company Intellectual Property, Transferred Intellectual Property or Licensed Intellectual Property.
(g) Each member of the Company Group has taken commercially reasonable steps to protect and preserve the confidentiality of all commercially valuable confidential or nonpublic information included in the Transferred Intellectual Property, Company Intellectual Property and Licensed Intellectual Property.
(h) Neither the execution and delivery or effectiveness of this Agreement nor the performance of the Seller’s obligations under this Agreement will cause the forfeiture or termination of, or give rise to a right of forfeiture or termination of, any material Transferred Intellectual Property, Company Intellectual Property or Licensed Intellectual Property, or impair the right to use, possess, sell or license any material Transferred Intellectual Property, Company Intellectual Property or Licensed Intellectual Property or any portion of any of the foregoing. After the Closing, all Transferred Intellectual Property and Company Intellectual Property will be fully transferable, alienable or licensable by the Buyer without material restriction and without material payment of any kind to any third party.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Gencorp Inc), Stock and Asset Purchase Agreement (Gencorp Inc)
Intellectual Property. (a) Within ten (10) Business Days following To the date Knowledge of this Agreementthe Company, the Company shall provide Parent with a correct and complete list of all owns, or is licensed or otherwise possesses sufficient rights to, the Intellectual Property owned by it believes is necessary for the business of the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesas currently conducted.
(b) To the Company’s Knowledge, the conduct of the business Section 3.17(b) of the Company Disclosure Letter lists all patents and patent applications and all registered trademarks, trade names and service marks, registered copyrights, and material domain names included in the Company Subsidiaries Intellectual Property, including the jurisdictions in which each such Company Intellectual Property right has been issued or registered or in which any application for such issuance and registration has been filed. To the Knowledge of the Company, and except as it is currently conducted set forth in the Company Reports, all patents, registered trademarks, service marks and planned copyrights held by the Company are valid and are subsisting. All filings, payments and other actions required to be conducted does not infringe, misappropriate made or otherwise violate any taken by the Company before the date of this Agreement to maintain each item of Company Intellectual Property rights of any third party identified in this Section 3.17(b) have been made and the Company has not received any written allegations to that effecttaken.
(c) To The Company is the Company’s Knowledgesole and exclusive owner of, no third party is currently misappropriatingwith all right, infringing or otherwise violating any title and interest in and to, the Company Intellectual Property (other than rights of held by Law by the U.S. government pursuant to government contracts, grants and funding) and, subject to any license agreements to which the Company or is a party and pursuant to which the Company licenses others to use any such Company Intellectual Property, such Company Intellectual Property is free and clear of all Encumbrances. No material license fees in respect of any Company SubsidiaryIntellectual Property that is owned by any Person jointly with the Company will be payable by Parent following the Closing to any such Person for the use or exploitation of such Company Intellectual Property.
(d) Except as has not hadTo the Knowledge of the Company, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to there is no unauthorized use, disclosure, infringement or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation misappropriation of any Company Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))by any Third Party, including any employee or former employee of the Company.
(e) To The Company has not been in the past six years and currently is not a party to any suit, action or proceeding that involves a claim of infringement or misappropriation of any Intellectual Property of any Third Party nor, to the Knowledge of the Company’s Knowledge, is any such suit, action or proceeding being threatened against the Company and Company. No Third Party has challenged in the Company Subsidiaries have taken commercially reasonable measures to protect past six years or currently is challenging the confidentiality of all trade secrets and any other material confidential information of ownership by the Company and Company, or the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or validity of, any of the Company Subsidiaries Intellectual Property. The Company has a confidentiality obligation)not brought in the past six years or currently is bringing any action, suit or proceeding for infringement of the Company Intellectual Property or breach of any license or agreement involving Intellectual Property against any Third Party. To There are no pending or threatened interference, re-examinations, oppositions or nullities involving any patents, patent rights or applications therefor of the Company’s Knowledge, no except such trade secrets or other material confidential information has as may have been disclosed commenced by the Company Company. There is no judgment outstanding against the Company, or any Company Subsidiaries Intellectual Property that limits the ability of the Company to exploit any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonCompany Intellectual Property.
(f) The IT Assets Company has secured valid written assignments from all of their respective employees, and valid written agreements to assign from all of their respective consultants, who contributed and/or are contributing to the creation or development of material Company Intellectual Property of the rights to such past, current and future contributions that the Company does not already own by operation of Law.
(g) The Company has taken commercially reasonable steps to protect and preserve the confidentiality of all the trade secrets of the Company. The Company has a policy requiring each or their respective employees, consultants and independent contractors having access to confidential information or trade secrets of the Company to execute proprietary information and confidentiality agreements.
(h) Section 3.17(h) of the Company Disclosure Letter contains a complete and accurate list, as of the date hereof, of all contracts to which the Company is a party (i) granting to the Company a license to or covenant not to xxx in respect of any Intellectual Property owned by a Third Party and used in the business of the Company as currently conducted (other than (A) standard biological material transfer agreements, (B) standard licenses purchased by the Company for generally available commercial software), and (C) contracts in which either the aggregate noncontingent payments by the Company are not in operating order in all material respects and are fulfilling excess of $125,000 or the purposes for which they were acquiredpotential payment by the Company is not expected to exceed $250,000), licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by under which the Company has granted to effectively performa Third Party a license or covenant not to xxx involving commercialization or co-promotion rights in respect of any Company Intellectual Property (collectively, in all material respects, all information technology operations necessary the “Company Intellectual Property Contracts”). No Company Intellectual Property Contracts may be unilaterally terminated by any Third Party which is a party to conduct the businesses such Company Intellectual Property Contract as a result of the Company and consummation of the transactions provided for herein, nor has any such Third Party granted the Company Subsidiaries as they are currently conducteda written waiver of any such right of termination.
Appears in 2 contracts
Samples: Merger Agreement (Trubion Pharmaceuticals, Inc), Merger Agreement (Emergent BioSolutions Inc.)
Intellectual Property. (a) Within ten The Company has all good title to or valid and enforceable rights under contract to use all Company Intellectual Property material to or necessary to conduct the Business as it is presently conducted and as presently contemplated by the Company, free and clear of all Liens (10other than Permitted Liens and Liens set forth on Schedule 3.15(a) Business Days following which will be terminated on or prior to the date Closing). No Seller and no officer, director or employee of this Agreementthe Company, or any of their respective Affiliates, has any ownership, royalty, license or other interest in any of the Company Intellectual Property, and all such Persons who have developed, in whole or in part, any Company Intellectual Property have duly executed a valid and enforceable agreement assigning all rights therein to the Company and agreeing to maintain the confidentiality of all confidential or proprietary information. Except as set forth on Schedule 3.17(a), the validity and enforceability of any of the Company shall provide Parent with a correct Intellectual Property or the title of the Company thereto has not been questioned in any litigation, governmental inquiry or proceeding and, to the Knowledge of the Company and complete list the Major Sellers, there are no facts or information that would raise any colorable questions about the validity, enforceability or ownership of Company Intellectual Property. The Company has taken all actions necessary and appropriate to preserve the confidentiality of all trade secrets, proprietary and other Confidential Information material relating to the Business. The Company does not have any Company Intellectual Property owned Registrations. Other than as set forth in Schedule 3.8(a)(v) and Schedule 3.8(a)(viii), there is no agreement or arrangement by which the Company grants or receives rights in or to (e.g., licenses, assignments, non-assertions, covenants not to xxx and/or escrow agreements) any of the Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct The use of the business of computer systems by the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property infringe the intellectual property rights of any third party and the Person. The Company has not received any written allegations to that effectexclusive control of the operation of the computer systems and of the storage, processing and retrieval of all data stored on the computer systems.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights Knowledge of the Company and the Major Sellers, the conduct of the Business by the Company has not and, if conducted as currently conducted and as presently contemplated by the Company, will not constitute an infringement or other violation of any copyright, trade secret, trademark, patent, invention, proprietary information, nondisclosure or any other rights of any Person. Except as set forth on Schedule 3.17(c), the Company Subsidiaryhas not received any notice and is not aware of infringement of or conflict with, any license, patent, copyright, trademark, service xxxx or other intellectual property right of any other Person.
(d) Except as has not had, Schedule 3.17(d) sets forth a true and would not reasonably be expected to have, individually complete list of all domain names owned or used by the Company in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and Business. Neither the Company Subsidiaries as it is currently conducted; providedSeller nor any officer, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute director or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information employee of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom Seller, the Company or any of their respective Affiliates has any ownership or other interest in the Company Subsidiaries has a confidentiality obligationdomain names set forth on Schedule 3.17(d). To None of the Company’s Knowledgedomain names infringe or conflict with any trademarks, no such trademark rights, trade secrets names, trade name rights, service marks or other material confidential information rights of any Person in India or the United States. No right to or interest in any domain name required to be listed on Schedule 3.17(d) has been disclosed by the Company or obtained in violation of any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonLaw.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Share Purchase Agreement (Par Pharmaceutical Companies, Inc.), Share Purchase Agreement (Par Pharmaceutical Companies, Inc.)
Intellectual Property. (ai) Within ten The Company and its subsidiaries own, or are validly licensed or otherwise have the right to use all (10i) Business Days following the date foreign and United States federal and state patents, trademarks, trade names, service marks and copyright registrations, (ii) foreign and United States federal and state patent, trademark, trade name, service mark xxx copyright applications for registration, (iii) common law claims to trademarks, service marks and trade names, (iv) claims of this Agreementcopyright which exist although no registrations have been issued with respect thereto, the Company shall provide Parent (v) fictitious business name filings with a correct any state or local Governmental Entity and complete list (vi) inventions, concepts, designs, improvements, original works of all Intellectual Property owned by the Company authorship, computer programs, know-how, research and development, techniques, modifications to existing copyrightable works of authorship, data and other proprietary and intellectual property rights (whether or any Company Subsidiary that is the not patentable or subject of an applicationto copyright, certificate, filing, registration mask work or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”trade secret protection), together with all in each case which are material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, to the conduct of the business of the Company and its Subsidiaries (collectively, the "Intellectual Property Rights"). There are no Liens other than Permitted Liens on the Intellectual Property Rights. There are no outstanding and, to the Company's knowledge, no threatened disputes or disagreements with respect to any Contract in respect of the Intellectual Property Rights.
(ii) Neither the Company nor any of its Subsidiaries is, nor has it during the three (3) years preceding the date of this Agreement been, a party to any litigation or arbitral or other proceeding, nor, to the knowledge of the Company, is any such proceeding threatened as it to which there is currently conducted and planned a reasonable possibility of a determination adverse to be conducted does not infringethe Company or one of its Subsidiaries, misappropriate that involved a claim of infringement by the Company or otherwise violate one of its Subsidiaries or any other Person (including any Governmental Entity) of any Intellectual Property rights Right. No Intellectual Property Right is subject to any outstanding order, judgment, decree, stipulation or agreement restricting the use thereof by the Company or any of its Subsidiaries or, in the case of any third party and Intellectual Property Right owned by the Company or its Subsidiaries licensed to others, restricting the sale, transfer, assignment or licensing thereof by the Company or any of its Subsidiaries to any other Person. Except as set forth on Schedule 5.1(ii), the Company has not received no knowledge that would cause it to believe that its or any written allegations to that effectSubsidiary's use of any Intellectual Property Right conflicts with, infringes upon or violates any patent, patent license, trademark, tradename, copyright, service mark, xxand mark xx brand name, or any trade secret of any Person.
(ciii) To Schedule 5.1(l) (iii) sets forth a complete list of (a) any material contracts related to the Company’s Knowledge, no third party is currently misappropriating, infringing Intellectual Property Rights and (b) all documents which license or otherwise violating convey any of the Intellectual Property rights Rights owned by the Company or any of its Subsidiaries to a third party.
(iv) All employees and independent contractors of the Company or any Company Subsidiary.
of its Subsidiaries involved with the development of graphics and video controllers for portable computers, desktop PC motherboard products and other products and computer software in connection therewith (dcollectively, "Products") Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom for the Company or any of the Company its Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by have executed written agreements with the Company or any applicable Subsidiary that assign to the Company Subsidiaries or such Subsidiary all rights to any Person other than pursuant to a written agreement restricting Intellectual Property Rights and that otherwise appropriately protect the disclosure and use of such trade secrets or any other material confidential information by such Person.
Intellectual Property Assets. (f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.m)
Appears in 2 contracts
Samples: Merger Agreement (Intel Corp), Merger Agreement (Chips & Technologies Inc)
Intellectual Property. (a) Within ten (10) Business Days following The Company and its Subsidiaries own or possess, or have valid and legally enforceable licenses to rightfully use, all Intellectual Property currently used or held for use by the date Company or any of this Agreementits Subsidiaries in connection with, or otherwise necessary to conduct, the Company shall provide Parent Business. The Company and its Subsidiaries are the sole owners of all Company Owned Intellectual Property and hold all right, title and interest in and to all Company Owned Intellectual Property and Company Licensed Intellectual Property, free and clear of any Lien. The Company Owned Intellectual Property and the Company Licensed Intellectual Property constitutes all the Intellectual Property used in or necessary for the operation of the Company Business.
(b) Except as set forth in Section 3.23(b) of the Company Disclosure Schedules, neither the Company nor any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property of any third party. None of the Company nor any of its Subsidiaries has received any written notice, or is subject to any claims, actions, suits, investigations or proceedings (including “cease and desist” letters), alleging infringement, misappropriation, dilution or other violation of or conflict with asserted rights of others with respect to any Intellectual Property Rights, with respect to matters that have not been resolved. Except as set forth in Section 3.23(b) of the Company Disclosure Schedules, to the Knowledge of the Company, no third party has infringed, misappropriated, diluted or otherwise violated, or is currently misappropriating, infringing, diluting or otherwise violating, any Company Owned Intellectual Property, other than with respect to matters that have been resolved.
(c) Section 3.23(c) of the Company Disclosure Schedules sets forth a correct true and complete list of all of the Company’s and its Subsidiaries’ issued patents and patent applications, trademark registrations and applications therefor, copyright registrations and applications therefor and Internet domain names (collectively, the “Company Registered IP”), in each case, included in the Company Owned Intellectual Property owned Property, specifying for each item the owner thereof, the registration or application number, the registration or application date, and the applicable filing jurisdiction (or, in the case of a domain name, the applicable domain name registrar). All registration, maintenance and renewal fees related to the Company Registered IP that are currently due have been paid and all documents and certificates related thereto have been filed with the relevant Government Authority or other authorities in the United States or foreign jurisdictions, as the case may be. All Company Registered IP is in good standing, held in compliance with all applicable legal requirements and enforceable by the Company or any one or more of its Subsidiaries.
(d) Each of the Company Subsidiary that is and its Subsidiaries has taken commercially reasonable steps in accordance with normal industry practice to maintain, enforce and protect the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (Company Owned Intellectual Property and their rights in the “Registered Company Licensed Intellectual Property”), together with including to maintain the confidentiality of all material unregistered trademarks. To Intellectual Property the Company’s Knowledgevalue of which to the Company or any of its Subsidiaries is contingent upon maintaining the confidentiality thereof, all material Registered and no such Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the disclosed other than to Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate Employees or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights Representatives of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company of its Subsidiaries own or all of whom are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))bound by written confidentiality agreements.
(e) To the Company’s KnowledgeEach director, the officer, current and former Company Employee, consultant and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality contractor of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of its Subsidiaries who has been involved in, or who has contributed to, the creation or development of any Company Owned Intellectual Property has executed and delivered an enforceable agreement regarding the protection of such Company Owned Intellectual Property and providing valid written assignments of such Company Owned Intellectual Property to the Company Subsidiaries has a confidentiality obligation)or its Subsidiaries. To True and complete copies of the Company’s Knowledgeforms of such agreements and assignments have been made available to Buyer in the Company Data Room. No director, no such trade secrets or other material confidential information has been disclosed by officer, current and former Company Employee, consultant and contractor of the Company or any Company of its Subsidiaries has any right, claim or interest to any Person other than pursuant to a written agreement restricting of the disclosure and use of such trade secrets or any other material confidential information by such PersonCompany Owned Intellectual Property.
(f) The IT Assets (i) are in operating order in all material respects Neither the execution and are fulfilling delivery of this Agreement nor the purposes for which they were acquiredconsummation of the Transactions will, licensed directly or established in an efficient manner without material downtime or errorsindirectly, (ii) have not, result in the past three (3) yearsloss or impairment of any Company Owned Intellectual Property or any Company Licensed Intellectual Property, experienced or give rise to any material errors and/or breakdowns, (iii) right of any third party to terminate or reprice or otherwise renegotiate any of the Company’s Knowledgeor any of its Subsidiaries’ rights to any of its Intellectual Property or their respective rights under any Company Intellectual Property Agreements, do not contain Unauthorized Codenor require the consent of any Governmental Authority or any third party in respect of, (iv) to the Company’s Knowledgeor any of its Subsidiary’s right to own, have not experienced use or hold for use any material security breachesIntellectual Property as owned, and (v) are considered by used or held for use in the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedBusiness.
Appears in 2 contracts
Samples: Merger Agreement (Snap Interactive, Inc), Merger Agreement (LiveXLive Media, Inc.)
Intellectual Property. (a) Within ten (10) Business Days following the date For purposes of this Agreement, the term "Intellectual Property" shall mean, collectively, patents, designs, art work, designs-in-progress, formulations, know-how, inventions, trademarks, trade names, trade styles, service marks, copyrights, manufacturing processes, and confidential or proprietary information. The Company shall provide Parent with a correct and complete list of owns or has the uncontested right to use all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, for the conduct of the its business as presently conducted and as proposed to be conducted. Except as disclosed in Section 5.19 of the Company and Disclosure Memorandum, no claim is pending or, to the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringeKnowledge of the Company, misappropriate or otherwise violate any Intellectual Property rights of any third party threatened, and the Company has not received any written allegations to notice that effect.
the conduct of its business (c) To the Company’s Knowledgeincluding without limitation, no third party is currently misappropriating, infringing or otherwise violating its use of any Intellectual Property) infringes upon, misappropriates or conflicts with any rights in Intellectual Property rights of claimed by any third party, nor is there any basis known to the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, for such a Company Material Adverse Effect, claim. No use by the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (licensed to it violates the terms of any agreement pursuant to which it is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To licensed. No claim is pending, or to the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information Knowledge of the Company and the Company Subsidiaries (and threatened, which alleges that any confidential information Intellectual Property owned or licensed by any Person or to whom the Company or which the Company otherwise has the right to use is invalid or unenforceable by the Company, nor is there any basis known to the Company for any such claim. The Company does not manufacture products which are the subject of patents, patent applications, copyrights, copyright registrations, trademarks, trademark registrations, trade styles, service marks, or trade secrets owned by or licensed from third parties, other than as described in Section 5.19 of the Company Subsidiaries has a confidentiality obligation)Disclosure Memorandum. To Except as shown in Section 5.19 of the Company’s KnowledgeCompany Disclosure Memorandum, no such trade secrets royalties or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) fees are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered payable by the Company to effectively performanyone for use of the Intellectual Property. Correct and complete copies of all agreements pursuant to which the Company has any license or right to use any Intellectual Property or pursuant to which it licenses any Intellectual Property have been or will be delivered to Parent. All such agreements are in full force and effect, and there are no existing Defaults or events of Default, real or claimed, or events which with or without notice or lapse of time, or both, would constitute Defaults under such agreements that would give the non-defaulting party a right to terminate such agreement or a right to receive any payment pursuant to such agreement. Except as disclosed in all material respects, all information technology operations necessary to conduct the businesses Section 5.19 of the Company and Disclosure Memorandum the Company Subsidiaries as they are currently conductedhas not received any notice that the manufacture, use, or sale by the Company of its products, or any component or part thereof, nor any manufacturing operation or machinery employed by the Company violates or infringes upon any claims of any United States or other patent or patent application owned or held by any third party in any jurisdiction, nor is there any basis known to the Company for any such claim. No consent of any third party is required in connection with the merger with respect to any Intellectual Property owned by, licensed to or by, or used by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Minotto Gene J), Merger Agreement (Fuqua Enterprises Inc)
Intellectual Property. (a) Within ten (10Section 3.15(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedule contains a correct true and complete list of all (i) Intellectual Property owned by by, or exclusively licensed to, any member of the Company or any Company Subsidiary Group that is the subject of an application, certificate, filing, registration registered or other document issued by, filed with or recorded by applied for before any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material (ii) unregistered trademarks, service marks, trade dress and copyrights owned by, or exclusively licensed to, any member of the Company Group that are material to the business of the Company Group and (iii) Software, Systems, tools, applications, data and databases owned by, or exclusively licensed to, any member of the Company Group that are material to the business of the Company Group (clauses (i) through (iii), collectively, “Scheduled Intellectual Property”). To Each member of the Company’s KnowledgeCompany Group is the exclusive owner or the exclusive licensee of all rights, title and interests in, to and under the Scheduled Intellectual Property, free and clear of all Liens. In addition to the Scheduled Intellectual Property, each member of the Company Group owns and possesses good title to, or has a valid license or right to use, all material Intellectual Property used by such Company Group or necessary for the operation of the business of each member of the Company Group as currently conducted (the “Company Intellectual Property”). Each item of Registered Intellectual Property has been maintained effective by the filing of is valid, subsisting and enforceable, and all necessary filingsdocuments and certifications in connection with the Registered Intellectual Property have been filed with, maintenance and renewals all relevant fees have been paid to, the relevant patent, copyright, trademark or other authorities, as the case may be, for the purposes of perfecting, prosecuting and timely payment of requisite feesmaintaining the Registered Intellectual Property.
(b) To the Company’s Knowledge, the conduct Knowledge of the business Company, except as set forth on Section 3.15(b) of the Disclosure Schedule, no third Person is infringing upon, misappropriating or otherwise violating any Company Intellectual Property that is owned by, or exclusively licensed to, any member of the Company and Group. No Intellectual Property misappropriation or infringement lawsuit, action, Proceeding or claim has been brought or threatened by any member of the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate Group against any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectother Person.
(c) To Except as set forth on Section 3.15(c) of the Company’s KnowledgeDisclosure Schedule, no third party is currently misappropriating, infringing or otherwise violating any none of the Registered Intellectual Property rights (i) has lapsed, expired or been abandoned or (ii) is the subject of the Company any opposition, interference, cancellation, invalidity, interference, re-examination or other Proceeding (other than routine office actions) before any Company SubsidiaryGovernmental Authority.
(d) Except as No member of the Company Group has not hadassigned, and would not reasonably be expected licensed, sublicensed or otherwise transferred any right under any Company Intellectual Property to have, individually or any third Person other than non-exclusive rights granted to customers of any member of the Company Group in the aggregate, a Company Material Adverse Effect, ordinary course of business pursuant to any member of the Company and Group’s standard form customer agreement. Each member of the Company Subsidiaries own Group and any Company Intellectual Property that is owned by, or are exclusively licensed to, any member of the Company Group is not subject to any Contract containing any covenant or other provision that in any way limits or restricts the ability of the Company to, in any way, use, assert, enforce, or otherwise possess valid rights to use, all exploit any Company Intellectual Property necessary to conduct anywhere in the business world other than confidentiality requirements entered into in the ordinary course of business. Except as set forth in Section 3.15(d) of the Disclosure Schedule, no member of the Company and the Company Subsidiaries as Group is a party to any Contract that requires it is currently conducted; providedto indemnify any Person for or against any interference, howeverinfringement, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringementdilution, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(e) To The conduct of the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality business of all trade secrets and any other material confidential information each member of the Company Group has not and does not infringe, misappropriate or violate the Company Subsidiaries (Intellectual Property rights of any third Person, and any confidential information owned by any Person to whom the Company or any each member of the Company Subsidiaries Group has a confidentiality obligation)not engaged in unfair competition with respect to the Intellectual Property of any third Person. To the Knowledge of the Company’s Knowledge, no such trade secrets or other material confidential information there has been disclosed by no charge, complaint, Claim, demand, notice or threat made to any member of the Company Group (i) alleging any interference, infringement, misappropriation or violation of the Intellectual Property rights of any third Person by any member of the Company Group or in connection with the conduct of any member of the Company Group’s business (including any claim that such Company Group must license or refrain from using any Intellectual Property rights of any third Person) or (ii) concerning any member of the Company Group’s use or ownership of any Company Subsidiaries Intellectual Property or challenging or questioning the validity or enforceability of any Company Intellectual Property, and to the Knowledge of the Company, there are no facts or circumstances that would form that basis for any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets complaint, Claim, demand, notice or any other material confidential information by such Personthreat.
(f) Each member of the Company Group has taken reasonable steps to prevent the unauthorized disclosure or use of its trade secrets and Confidential Information, and has required any employee or third Person with access to any member of the Company Group’s trade secrets or Confidential Information to execute enforceable Contracts requiring them to maintain the confidentiality of such trade secrets and Confidential Information. To the Knowledge of the Company, there has been no unauthorized use or disclosure of any Confidential Information or trade secrets of any member of the Company Group. All current and former employees and contractors of any member of the Company Group who contributed to the creation of any Company Intellectual Property have executed enforceable Contracts that assign to any member of the Company Group all of such Person’s respective rights, title and interests in, to and under such Company Intellectual Property and no current or former employee or contractor of any member of the Company Group holds or retains any right, title or interest in or to any Company Intellectual Property.
(g) No Software that is a Company Group product or service contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing, any of the following functions: (A) disrupting, disabling, harming, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed or (B) damaging or destroying any data or file without the user’s consent. No member of the Company Group has a duty or obligation (whether present, contingent or otherwise) to deliver, license, or make available the source code for any Company Software (including as may be required under any applicable Open Source Software license) to any escrow agent or other Person, nor has any member of the Company Group ever divulged or delivered any such source code to any escrow agent or other Person.
(h) The IT Assets Systems that are used or relied on by each member of the Company Group are adequate for the operation of each member of the Company Group’s business as currently conducted, are sufficient for the current needs of such business and each member of the Company Group has purchased a sufficient number of license seats for all licensed Software currently used by each member of the Company Group. With respect to the Systems, (i) are in operating order in all there has not been any material respects and are fulfilling the purposes for which they were acquiredmalfunction that has not been remedied or replaced, licensed or established in an efficient manner without any material unplanned downtime or errorsservice interruption, (ii) have noteach member of the Company Group has implemented or is in the process of implementing (or, in the past three (3exercise of reasonable business judgment, has determined that implementation is not yet in the best interest of the Company) years, experienced any material errors and/or breakdowns, in a timely manner all security patches or security upgrades that are generally available for the Systems and (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses each member of the Company Group has taken reasonable steps and implemented reasonable procedures to ensure that such Systems used in connection with the operation of such Company Subsidiaries as they Group’s business are currently conductedfree from contaminants, including the use of commercially available antivirus Software with the intention of protecting the Systems from becoming infected by viruses and other harmful code.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Avalon GloboCare Corp.), Membership Interest Purchase Agreement (Avalon GloboCare Corp.)
Intellectual Property. (aSet forth on Schedule 1.01(a)(ii) Within ten (10) Business Days following hereto is a complete and accurate list of the date Company’s issued patents and pending patent applications, registered and common law trademarks and pending trademark applications, service marks, tradenames, copyrights, domain names, URLs and web pages, and other similar rights and applications therefor, and all contracts, agreements and other rights with respect to each of this Agreementthe foregoing, in any case whether domestic or foreign relating to, used in, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by Business other than the Company or any Company Subsidiary that is the subject of an applicationExcluded Assets (collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Business Intellectual Property”). The Company has not licensed its rights in any Business Intellectual Property, together with all material unregistered trademarkscurrent or planned products, designs or services to any other person or entity. To Schedule 1.01(a)(ii) hereto completely and accurately sets forth which of the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by is duly, validly and properly registered with or issued by, as applicable, the filing U.S. Patent and Trademark Office, the Registrar of Copyrights and applicable foreign Governmental Authorities in foreign jurisdictions. The Business Intellectual Property constitutes all such rights necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, to the conduct of the business Business as currently conducted and as proposed to be conducted; except as set forth on Schedule 3.06 no adverse claims have been made and no dispute has arisen with respect to any Business Intellectual Property; and to the knowledge of the Company, the operation of the Company and the Business and the use by the Company Subsidiaries as it is currently conducted and planned to be conducted of the Business Intellectual Property does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to involve infringement, misappropriation, violation or claimed infringement or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledgepatent, trademark, service xxxx, tradename, copyright, agreement, license or similar right. Except as set forth on Schedule 3.06, the Company has received no notice (written or oral) that, nor is the Company aware of any claim or assertion that, any of the Business Intellectual Property is invalid or defective or infringing in any way, and the Company Subsidiaries have taken commercially reasonable measures to protect is not aware of any facts or prior acts upon which such a claim or assertion could be based. The execution and delivery of this Agreement and the confidentiality of all trade secrets and any other material confidential information consummation of the Company and transactions contemplated by this Agreement (including the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any transfer of the Company Subsidiaries has a confidentiality obligation). To Assets to the Company’s KnowledgePurchaser) will in no way affect the continuation, no such trade secrets validity or effectiveness of any Business Intellectual Property or require the consent, waiver, approval or authorization of any Governmental Authority or other material confidential information has been disclosed by the Company person or entity in respect of any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonBusiness Intellectual Property.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (TNS Inc), Purchase and Sale Agreement (U S Wireless Data Inc)
Intellectual Property. (a) Within ten (10) Business Days following Schedule 2.13 of the Company Disclosure Schedule sets forth a complete and accurate list as of the date of this Agreement, the Company shall provide Parent with a correct and complete list Agreement of all Intellectual Property material patents and patent applications; registered trademarks, service marks and trade names; registered domain names; and registered copyrights that are owned by the Company or any of the Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective Subsidiaries and used by the filing Company or any of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of its Subsidiaries in the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectSubsidiaries.
(cb) To Except as set forth on Section 2.13 of the Company Disclosure Schedule:
(i) except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, to the knowledge of the Company’s Knowledge, no third party is currently misappropriatingthe Company and/or the Company Subsidiaries (A) exclusively own the Company Intellectual Property, infringing or (B) license, sublicense or otherwise violating any possess legally enforceable rights to use all Company Intellectual Property rights that it does not so own, in the case of the foregoing clauses (A) and (B) above, free and clear of all Liens granted by the Company, other than Permitted Liens, and as are reasonably necessary for their businesses as currently conducted;
(ii) to the knowledge of the Company, neither the operation of the business of the Company or any of the Company SubsidiarySubsidiaries, nor any activity of the Company or any of the Company Subsidiaries conflicts with, infringes upon or misappropriates any Intellectual Property of any third party;
(iii) to the knowledge of the Company, the Company Intellectual Property is not being infringed or misappropriated by any third party.
(div) Except as has the Company and the Company Subsidiaries have taken reasonable measures and efforts to protect and maintain the confidentiality of any know-how, trade secrets, confidential information or proprietary information owned by the Company or any of the Company Subsidiaries;
(v) the Company and the Company Subsidiaries are not hada party to any claim, suit or other action, and to the knowledge of the Company, no claim, suit or other action is threatened against any of them, that challenges the validity, enforceability or ownership of, or the right to use, sell or license the Company Intellectual Property and, no third party has alleged in writing during the two (2) year period prior to the date hereof that any of the operation of the Company Intellectual Property, the operation of the business of the Company or any of the Company Subsidiaries, or any activity of the Company or any of the Company Subsidiaries conflicts with, infringes upon or misappropriates any Intellectual Property of any third party;
(vi) except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no current or former employee or consultant of the Company or any of its Subsidiaries owns any material rights in or to any Intellectual Property created in the scope of such employee’s employment or consultant’s engagement by, as applicable, with the Company or any of the Company Subsidiaries;
(vii) except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the transactions contemplated by this Agreement will not adversely affect the Company’s or the Company Subsidiaries’ or the Surviving Corporation’s right, title and interest in and to the Company Intellectual Property; and
(viii) all patents, patent applications and registrations for trademarks, service marks and copyrights which are held by the Company or any of the Company Subsidiaries own or and which are licensed material to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries Subsidiaries, taken as it is a whole, as currently conducted; provided, howeverare subsisting, that have been duly maintained (including the foregoing representation payment of maintenance fees), and warranty in this Section 4.21(d) shall have not constitute expired or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))been cancelled.
(ec) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality For purposes of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.this Agreement,
Appears in 2 contracts
Samples: Merger Agreement (Onstream Media CORP), Merger Agreement (Narrowstep Inc)
Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with Schedule 3.11 contains a correct complete and complete accurate list of all (i) patented or registered Intellectual Property owned by the Company or any Company Subsidiary, (ii) pending patent applications and applications for other registrations of Intellectual Property filed by or on behalf of the Company or any Company Subsidiary, and (iii) material unregistered Intellectual Property owned or used by the Company or any Company Subsidiary, other than “shrink-wrapped” or “off-the-shelf” software licenses licensed to the Company or any Company Subsidiary that is on standard terms for less than five thousand dollars ($5,000) per annum for any such license. Schedule 3.11 also contains a complete and accurate list of all licenses, royalty agreements, and other rights granted by the Company or any Company Subsidiary to any third party with respect to any Intellectual Property owned by the Company or a Company Subsidiary and all licenses, agreements, and other rights granted by any third party to the Company with respect to any Intellectual Property (other than “shrink-wrapped” or “off-the-shelf” software licenses licensed to the Company or a Company Subsidiary) on terms the Company believes are customary for less than five thousand dollars ($5,000) per annum for any such license), in each case identifying the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with . The Company or one of the Company Subsidiaries owns (or has valid rights to use) all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of material to the business of the Company and Company Subsidiaries. All Intellectual Property owned by the Company and the Company Subsidiaries is free and clear of all Encumbrances (other than Permitted Encumbrances).
(b) The Company or one of the Company Subsidiaries owns and possesses, or has the right to use pursuant to a valid license, all Intellectual Property necessary to or currently used in the operation of its business as it presently conducted. Neither the Company or any Company Subsidiary is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate utilizing any Intellectual Property rights of any third party and of its employees developed, invented or made prior to their employment by the Company has not received or any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating Company Subsidiary except for any such Intellectual Property rights of that have previously been assigned to the Company or any Company Subsidiary.
(dc) Except as No loss or expiration of any Intellectual Property or related group of Intellectual Property owned or used by the Company or any Company Subsidiary has not had, and occurred which has had or would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, and no loss or expiration of any such Intellectual Property is pending or, to the Knowledge of the Company, threatened. All such Intellectual Property owned by the Company or a Company Subsidiary is valid, subsisting and enforceable and, to the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to useKnowledge of the Company, all Intellectual Property necessary to conduct the business of used (but not owned) by the Company or a Company Subsidiary is valid, subsisting and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))enforceable.
(ed) To There have been no claims made or, to the Knowledge of the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom threatened against the Company or any Company Subsidiary asserting (i) the invalidity, misuse or unenforceability of any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets Intellectual Property owned or other material confidential information has been disclosed used by the Company or any Company Subsidiaries Subsidiary, or (ii) that the operation of the business of the Company or any Company Subsidiary infringes or otherwise conflicts with any Intellectual Property of any third party (including any demand or request that the Company or a Company Subsidiary license any rights from a third party). To the Knowledge of the Company, no Person has infringed upon or otherwise conflicted with or is currently infringing upon or otherwise conflicting with any Intellectual Property owned by the Company or Company Subsidiary. The transactions contemplated by this Agreement will have not have a Company Material Adverse Effect on the Company’s or any Company Subsidiary’s right, title or interest in and to the Intellectual Property owned or used by the Company or any Person other than pursuant to a written agreement restricting the disclosure Company Subsidiary and use all of such trade secrets Intellectual Property will be owned or any other material confidential information available for use by such Personthe Company or the applicable Company Subsidiary immediately after the Closing.
(fe) The IT Assets As used in this Agreement, “Intellectual Property” means all (i) are patents, patent applications, patent disclosures and inventions, whether foreign or domestic, including all reissues, continuations, divisions, continuations in operating order in all material respects part and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errorsrenewals and extensions thereof, (ii) have notinternet domain names, in the past three (3) yearstrademarks, experienced any material errors and/or breakdownsservice marks, trade dress, trade names, slogans, logos and corporate names and registrations and applications for registration thereof, (iii) to the Company’s Knowledgeregistered copyrights, do not contain Unauthorized Codecopyrightable works and registrations and applications for registration thereof, (iv) to the Company’s Knowledgecomputer software (including both source and object code), have not experienced any material security breachesdata, data bases and documentation, (v) are considered by the Company to effectively perform, trade secret rights and (vi) copies and tangible embodiments thereof (in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedwhatever form or medium).
Appears in 2 contracts
Samples: Merger Agreement (Language Line Costa Rica, LLC), Merger Agreement (Language Line Holdings, Inc.)
Intellectual Property. (a) Within ten (10Section 4.15(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Letter sets forth a correct and complete list of all Intellectual Property patents and patent applications, trademark registrations and applications, copyright registrations and applications, and Internet domain names, in each case owned by the Company or any a Company Subsidiary. The Company or a Company Subsidiary that is the subject sole and exclusive owner of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (all Intellectual Property set forth in Section 4.15(a) of the “Registered Intellectual Property”), together with all material unregistered trademarksCompany Disclosure Letter. To the Company’s Knowledge, all material Registered Such Intellectual Property has not been maintained effective by cancelled, abandoned or dedicated to the filing of all necessary filingspublic domain. All registration, maintenance and renewals renewal fees necessary to preserve the rights of the Company or the Company Subsidiaries in connection with such Intellectual Property have been paid in a timely manner and, to the Knowledge of the Company, such Intellectual Property is valid and timely payment of requisite feesin full force and effect.
(b) To Except as, individually or in the Company’s Knowledgeaggregate, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, had and would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (i) the Company and the Company Subsidiaries own own, free and clear of any Liens (which, for the avoidance of doubt, shall not be deemed to include license agreements) or are licensed to use, has a valid and enforceable license or otherwise possess valid and enforceable rights to use, use all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to conduct of the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses business of the Company and the Company Subsidiaries as it is currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any third party, (iii) there are no pending or, to the knowledge of the Company, threatened claims with respect to any of the Intellectual Property rights owned by the Company or any Company Subsidiary, (iv) none of the Company, Company LP or any Company Subsidiary (nor any of their respective predecessors) has received any written notice since January 1, 2010 from any third party (A) asserting the infringement or other violation of any Intellectual Property by the Company or a Company Subsidiary or (B) challenging the validity, enforceability, or registrability of, any right, title or interest of the Company or the Company Subsidiaries with respect to, any material Intellectual Property, and (v) to the knowledge of the Company, no third party is currently infringing or misappropriating Intellectual Property owned by the Company or any Company Subsidiary. The Company and the Company Subsidiaries have implemented commercially reasonable measures to maintain and protect each material item of Intellectual Property that they are currently conductedown and to the knowledge of the Company, there has not been any disclosure or compromise of any material confidential or proprietary information of the Company or the Company Subsidiaries (including any information of any other Person disclosed in confidence to the Company or the Company Subsidiaries) to any third person in a manner that has resulted or is likely to result in the loss of trade secrets or other proprietary rights in and to such information.
(c) Notwithstanding the foregoing, none of the representations and warranties in this Section 4.15 shall be applicable to the Xxxxxx Names and Marks.
Appears in 2 contracts
Samples: Merger Agreement (Thomas Properties Group Inc), Merger Agreement (Parkway Properties Inc)
Intellectual Property. (a) Within ten The Company or its Subsidiaries owns, free and clear of all Liens, licenses and other restrictions, or is licensed to use, the worldwide rights to all domestic and foreign patents, patent applications, registered and unregistered trademarks and service marks, trade names, company names, copyrights together with any registrations and applications therefor, Internet domain names, schematics, inventories, technology, trade secrets, proprietary information, know-how, databases, inventions, computer software programs or applications including, without limitation, all object and source codes and tangible or intangible proprietary information or material that in any material respect are used or necessary in the business of the Company and any of its Subsidiaries as currently conducted (10the "Intellectual Property"). Section 4.14(a) Business Days following of the Company Disclosure Letter sets forth: (i) all material patents, patent applications, registered and unregistered trademarks and service marks, trade names, company names, registered copyrights, and any applications therefor, foreign and domestic; and (ii) all material licenses and other agreements to which the Company or any of its Subsidiaries is a party (the "Licenses") and pursuant to which the Company or any of its Subsidiaries is authorized to use any Intellectual Property and includes the identities of the parties thereto, a description of the nature and subject matter thereof, the applicable royalty and the term thereof. Neither the Company nor any of its Subsidiaries is, or as a result of the execution, delivery or performance of the Company's obligations hereunder will be, in violation of, or lose any rights pursuant to, any license or agreement set forth in Section 4.14(a) of the Company Disclosure Letter.
(b) No claims have been asserted or, to the knowledge of the Company, are threatened by any person or entity nor does the Company or any of its Subsidiaries know of any grounds for any bona fide claims (i) to the effect that the manufacture, sale, use, offer for sale, reproduction, distribution or modification, of any product or process by the Company or any of its Subsidiaries infringes or within the three (3) year period immediately prior to the date hereof has infringed any copyright, trade secret, trademark, patent or other intellectual property right of this Agreementany person or entity, (ii) that, if sustained, might adversely effect the interests of the Company or any of its Subsidiaries in any Intellectual Property, or (iii) challenging the ownership, validity or enforceability of any of the Intellectual Property. All patents and all registered trademarks and service marks set forth in Section 4.14(a) of the Company Disclosure Letter and all copyrights held by the Company or any of its Subsidiaries are valid, enforceable and subsisting. To the Company's knowledge, there has not been and there is not any unauthorized use, infringement or misappropriation of any of the Intellectual Property by any person or entity, including, without limitation, any employee or former employee.
(c) The operation of the Company as of the Effective Time shall provide Parent with a correct and complete list of all require no rights under Intellectual Property other than the rights under Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of rights granted to the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonLicenses.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Healthworld Corp), Merger Agreement (Cordiant Communications Group PLC /Adr)
Intellectual Property. (a) Within ten Section 3.07(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all (10i) Business Days following issued and pending patents and patent applications, (ii) registered and applications for registration of trademarks and service marks, (iii) registered Internet domain names, and (iv) registered copyrights, in each case, included in the Company IP owned by the Company or any of its Subsidiaries and (v) any license agreement governing Company Licensed IP.
(b) The Company and its Subsidiaries own or possess the right to use (i) to the Knowledge of the Company, all valid and enforceable patents and patent applications, (ii) all valid and enforceable trademarks, trademark registrations, service marks, service mxxx registrations, Internet domain name registrations, copyrights, copyright registrations, licenses, trade secret rights (the items described in clauses (i) and (ii) collectively, “Intellectual Property Rights”) and (iii) inventions, software, works of authorships, trade names, databases, formulae, know how, Internet domain names and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information, systems, or procedures) (collectively, “Intellectual Property Assets”, and together with the Intellectual Property Rights, the “Company IP”) necessary to conduct their respective businesses as currently conducted, and as proposed to be conducted and described in the Company SEC Documents.
(c) The Company IP owned by the Company or any of its Subsidiaries is owned solely and exclusively by the Company or its Subsidiary, free and clear of any Liens other than Permitted Liens. To the Knowledge of the Company, the Company IP owned by the Company and the Licensed IP, is valid, enforceable, subsisting and in full force and effect. None of the Company IP owned by the Company, and to the Knowledge of the Company, none of the Licensed IP, is or has been subject to any pending, concluded, or, to the Knowledge of the Company, threatened, Legal Action or other proceeding (including any interference, derivation, re-examination, opposition, cancellation reissue or other post-grant proceeding, but excluding customary office actions issued by an application examiner with the United States Patent and Trademark Office or its foreign equivalent in the ordinary course of business in connection with the prosecution of a pending application for a patent or a trademark registration) that challenges the validity, enforceability, use, right to use, scope, duration, effectiveness or ownership of any item of such Company IP.
(d) Each item of Company IP owned by the Company or any of its Subsidiaries immediately subsequent to the Effective Time will be owned and available for use by the Surviving Company on the same terms and conditions as are in effect immediately prior to the Effective Time. Each item of Licensed IP will be licensed to and available for use by the Surviving Company on the same terms and conditions as are in effect immediately prior to the Effective Time.
(e) The Company and its Subsidiaries have not received any opinion from their legal counsel concluding that any activities of their respective businesses infringe, misappropriate, or otherwise violate, valid and enforceable Intellectual Property Rights of any other person, and have not received written notice of any challenge by any other person to the rights of the Company and its Subsidiaries with respect to any Intellectual Property Rights or Intellectual Property Assets owned or used by the Company or its Subsidiaries. To the Knowledge of the Company, the Company and its Subsidiaries’ respective businesses as now conducted do not give rise to any infringement of, any misappropriation of, or other violation of, any valid and enforceable Intellectual Property Rights of any other person.
(f) All licenses for the use of the Intellectual Property Rights described in the Company SEC Documents are valid, binding upon, and enforceable by or against the parties thereto in accordance to its terms. The Company has complied in all material respects with, and is not in breach nor has received any asserted or threatened claim of breach of, any license to any Intellectual Property Rights or Intellectual Property Assets license, and the Company has no Knowledge of any breach or anticipated breach by any other person of any such license.
(g) Except as described in the Company SEC Documents, no claim has been made against the Company alleging the infringement by the Company of any patent, trademark, service mxxx, trade name, copyright, trade secret, license in or other intellectual property right or franchise right of any person. The Company has taken all reasonable steps to protect, maintain and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality agreements. Except as disclosed in Section 3.07(g) of the Company Disclosure Letter, the consummation of the transactions contemplated by the Transaction Documents shall not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s right to own, use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the business as currently conducted.
(h) The Company has at all times complied in all material respects with all applicable laws relating to privacy, data protection, and the collection and use of personal information collected, used, or held for use by the Company in the conduct of the Company’s business. Since January 1, 2017, the Company’s and each of its Subsidiaries’ collection, storage, use and dissemination of personally identifiable information and any other data that could reasonably be used to identify any consumer, patient, employee or other person or any of their respective devices has, at all times complied in all material respects with all applicable Law, privacy policies and terms of use and other contractual obligations relating to privacy, data protection or data security. Since January 1, 2017, no breach, security incident, or violation of any data security policy in relation to personally identifiable information or other data that could reasonably be used to identify any consumer, patient, employee or other person or any of their respective devices has occurred, or is or was threatened, and there has been no unauthorized or illegal processing of such data. The Company and each of its Subsidiaries maintain commercially reasonable security procedures to protect against loss, misuse, unauthorized access, disclosure, and destruction of personally identifiable information and other data pertaining to consumers, patients, employees or other persons. Since January 1, 2017, neither the Company nor any of its Subsidiaries has received written, or to the Knowledge of the Company, any non-written, notice of any claims (including any investigation or notice from any Governmental Authority) that have been asserted or threatened against the Company or any of its Subsidiaries alleging, any violation of any Person’s privacy or personally identifiable information or data rights or non-compliance with applicable Laws, privacy policies or terms of use or other contractual obligations relating to privacy, data protection or data security.
(i) The Company has taken all necessary actions to obtain ownership of or a license to all works of authorship and inventions made by its employees, consultants and contractors during the time they were employed by or under contract with the Company and which relate to the Company’s business. All key employees have signed confidentiality and invention assignment agreements with the Company.
(j) To the Knowledge of the Company, the Company has complied with the United States Patent and Trademark Office’s duty of candor, good faith and disclosure and best mode requirement for any patent applications filed by the Company and still owned by the Company as of the date of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance requirements for patentability and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights enforceability of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not hadresultant patents, and would not reasonably be expected to have, individually or has made no material misrepresentation in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))such applications.
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Aevi Genomic Medicine, Inc.), Merger Agreement (Aevi Genomic Medicine, Inc.)
Intellectual Property. (a) Within ten The Company and its Subsidiaries have sufficient rights to use all Intellectual Property used in their business as presently conducted. The Intellectual Property owned by the Company and its Subsidiaries is valid, subsisting and enforceable, and is not subject to any outstanding order, judgment, decree or agreement adversely affecting the Company’s or its Subsidiaries’ use of, or its rights to, such Intellectual Property. To the Knowledge of the Company, (10i) Business Days following the Company and its Subsidiaries have not infringed or otherwise violated the Intellectual Property rights of any third party during the three (3) year period immediately preceding the date of this Agreement, ; and (ii) no third party has infringed or otherwise violated the Intellectual Property rights of the Company shall provide Parent with or any Subsidiary. Neither the Company nor any Subsidiary has during the past three (3) years given notice to or received notice from any third party of any pending or threatened claim related to the ownership, validity, infringement or other violation of Intellectual Property used in the business of the Company and its Subsidiaries.
(b) The Company and its Subsidiaries have taken reasonable measures to protect the confidentiality of all Trade Secrets that are owned, used or held by the Company and its Subsidiaries, and to the Knowledge of the Company, such Trade Secrets have not been used, disclosed to or discovered by any person except pursuant to valid and appropriate non-disclosure and/or license agreements which have not been breached.
(c) Section 3.17 of the Company Disclosure Letter includes a correct complete and complete accurate list of all patents, patent applications, trademark registrations, trademark applications, common law trademarks, Internet domain names, registered copyrights and other material Intellectual Property owned by the Company or any Subsidiary. The Company Subsidiary that is and its Subsidiaries collectively own, free and clear of all Liens, all of the subject Intellectual Property listed in Section 3.17 of an application, certificate, filing, registration the Company Disclosure Letter. The Company and its Subsidiaries have not granted any licenses or other document issued byrights to third parties to use Intellectual Property owned by the Company or its Subsidiaries other than non-exclusive licenses granted in the ordinary course of business pursuant to standard terms which have been previously provided to Parent, filed with and there exist no material restrictions on the disclosure, use, license or recorded by transfer of any Governmental Authority or domain name registrar (the “Registered such Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(bd) To The IT Assets owned by the Company and its Subsidiaries or used by the Company and its Subsidiaries in connection with the respective businesses of the Company and its Subsidiaries (collectively, the “Company IT Assets”) (i) have not materially malfunctioned or failed within the past twelve (12) months, (ii) are sufficient for conduct of the respective businesses of the Company and each of its Subsidiaries as they are currently conducted and (iii) to the Knowledge of the Company’s Knowledge, do not contain any disabling or other unauthorized code. The Company and its Subsidiaries (as applicable) have implemented commercially reasonable measures to protect the confidentiality and security of the Company IT Assets against any unauthorized use, access, interruption, modification or corruption. The Company and its Subsidiaries (as applicable) have implemented commercially reasonable data backup, data storage and disaster recovery and business continuity procedures with respect to the material Company IT Assets.
(e) With respect to the collection, use, handling, storage, privacy, protection, and security of Personal Information, the Company and its Subsidiaries, have adopted commercially reasonable policies and procedures and have complied, and are currently operating in compliance with, all such policies and procedures and all applicable Information Privacy and Security Laws, all additional or higher leading industry standards or requirements applicable to the conduct of the business businesses of the Company and its Subsidiaries (including PCI-DSS), and all Contracts to which the Company or any of its Subsidiaries as it is currently conducted and planned to be conducted does not infringea party. No equityholder, misappropriate officer, or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights director of the Company or any of its Subsidiaries, has during the past three (3) years engaged in any act on behalf of such entity that violates any Information Privacy and Security Law, or any standard, requirement, or Contract described in the previous sentence. Neither the Company Subsidiary.
nor any of its Subsidiaries has received any written notice from any Governmental Entity of any violation of any Information Privacy and Security Law by the Company or any of its Subsidiaries in the conduct of their respective businesses. The Company and its Subsidiaries have established and maintain commercially reasonable data and information security programs and privacy policies. The Company and its Subsidiaries, have during the past three (d3) Except as has not hadyears complied, and would not reasonably be expected to haveare in compliance in all material respects with all such programs and policies. To the Knowledge of the Company, individually or in the aggregate, a Company Material Adverse Effect, neither the Company and nor any of its Subsidiaries has made or suffered any unauthorized acquisition, access, intrusion, breach, use or disclosure of the Company Subsidiaries own IT Systems or are licensed any information, including Personal Information, relating to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business respective businesses of the Company and its Subsidiaries or otherwise acted in a manner that would trigger a notification or reporting requirement under any Information Privacy and Security Laws. Neither the Company nor any its Subsidiaries has during the past three (3) years notified, either voluntarily or as it is currently conducted; providedrequired by Law, howeverany affected individual, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriationGovernmental Entity, or violation the media, of any Intellectual Property rights (which breach of information, including Personal Information, relating to the respective businesses of the Company and its Subsidiaries, and neither the Company nor any of its Subsidiaries is addressed in Section 4.21(b) and Section 4.21(c))planning to conduct any such notification or investigating, regardless of whether any such notification is required.
(ef) To the Company’s Knowledge, the The Company and the Company its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of ensure that all trade secrets and third parties that are provided with access to Personal Information, Customer Data and/or any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To data contained in the Company’s Knowledgedatabases protect the privacy, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure security and use confidentiality of such trade secrets or any other material confidential information by such Persondata and information.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Unified Grocers, Inc.), Merger Agreement (Supervalu Inc)
Intellectual Property. (a) Within ten (10) Business Days following the date of this AgreementThe Group Companies own all right, the Company shall provide Parent with a correct title and complete list interest to, or have valid licenses or other rights to use, free and clear of all Encumbrances, other than Permitted Encumbrances, all of the Intellectual Property owned by used in the Company or any Company Subsidiary that is operation of the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with business as currently conducted. Schedule 3.12 lists all registered and material unregistered trademarks, trade names, service marks, logos, registered and material unregistered copyrights, material Software, domain names, social media accounts, and patents, including pending applications to register or renew any of the foregoing with any Governmental Entity, that are owned or registered by any Group Company and which have not expired or been abandoned, other than Intellectual Property where the failure to register or maintain registration would not be material. To the Company’s KnowledgeKnowledge of Seller, all material Registered (i) no Group Company is infringing the Intellectual Property has been maintained effective by the filing rights of all necessary filingsany other Person in any manner that is or would be material, maintenance and renewals and timely payment of requisite fees.
(bii) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it no Person is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate infringing any Intellectual Property rights of any third Group Company. Schedule 3.12 lists all material written licenses to which any Group Company is a party, pursuant to which (a) any Group Company permits any Person to use any of its Intellectual Property or grants a covenant not to use or (b) any Person permits any Group Company to use any Software or Intellectual Property not owned by any Group Company, except for Off-the-Shelf Software (collectively, “Licenses”). Seller has made available to Buyer complete and correct copies of the Licenses listed on Schedule 3.12. No Group Company and, to the Knowledge of Seller, no other party thereto, is in default, in any material respect, under any License, and the Company has not received any written allegations to that each License is in full force and effect.
(cb) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in Within the past three (3) years, experienced any to Seller’s Knowledge, (i) none of the Group Companies has suffered a material errors and/or breakdownsData Breach, (ii) no material breach or violation of the Written Information Security Program has occurred and (iii) except as set forth in Schedule 3.12(b), none of the Group Companies has notified or been required to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced notify any Person of any material security breachesData Breach suffered by its service providers, and Seller or any of its Affiliates (v) are considered including Group Companies). No representation or warranty is made in this Agreement with respect to Data Breaches suffered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses third parties other than Seller or any of the Company and the Company Subsidiaries as they are currently conductedits Affiliates (including Group Companies).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Beacon Roofing Supply Inc)
Intellectual Property. (a1) Within ten (10Section 3.3(x) Business Days following of the date of this AgreementDisclosure Schedule sets forth a true, the Company shall provide Parent with a correct and complete list of all all: (A) patented or registered and applications to patent or register Company Intellectual Property owned Property; (B) Proprietary Software and Software licensed, leased or otherwise used by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or (other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the than “Registered Intellectual Property”off-the-shelf” Software), together with all material unregistered trademarks. To identifying which Software is owned, licensed, leased or otherwise used, as the Company’s Knowledge, all material Registered case may be; and (C) Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesLicenses.
(b2) To The Company owns and possesses or has the Company’s Knowledge, the conduct right to use and as of the business of the Company Closing Date shall own and the Company Subsidiaries as it is currently conducted possess all right, title and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to useinterest to, or otherwise possess valid rights have the right to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than use pursuant to a written agreement restricting the disclosure valid and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have notenforceable license, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, each case in all material respects, all information technology operations Intellectual Property rights necessary for the operation of the Business as presently conducted.
(3) The Company Intellectual Property is valid, enforceable and in good standing and the Company owns all Company Intellectual Property, free and clear of any Liens other than Permitted Liens. All other Intellectual Property licensed, or used by Company is, to conduct Sellers’ knowledge, valid, enforceable and in good standing.
(4) All annuity, maintenance, renewal and other fees required to maintain the businesses patents, patent applications, trademark registrations, trademark applications, domain names registrations included within the Company Intellectual Property, are current.
(5) Except as set forth on Section 3.3(x) of the Disclosure Schedule, no action, suit, hearing, claim, or demand is pending or, to the knowledge of Sellers, threatened, that challenges the legality, validity, enforceability, use, or ownership of the Company Intellectual Property.
(6) The Company is not infringing and has not infringed any Intellectual Property of any Person in the operation of the Business. There are no pending, or to Sellers’ knowledge, threatened claims by any third party against Company alleging that the Company’s use of any Company Intellectual Property infringes the Intellectual Property of such third party.
(7) To Sellers’ knowledge there is no unauthorized use, disclosure, infringement or misappropriation of any Company Intellectual Property by any third party, including any employee or former employee of the Company. The Company has not agreed to indemnify any third party for any infringement of any Company Intellectual Property as it relates to the Business as conducted by Company as of Closing.
(8) Except as set forth in Section 3.3(x) of the Disclosure Schedule, (A) the Company Subsidiaries has not granted any license or made any assignment of any of the Company Intellectual Property, (B) the Company has not granted any third party any right to use any of the Company Intellectual Property, and (C) in the conduct of the Business, the Company does not pay any royalties or other consideration for the right to use any Company Intellectual Property.
(9) The Company has taken commercially reasonable measures to maintain the confidentiality of all material trade secrets included within the Company Intellectual Property to the extent appropriate to maintain all proprietary rights therein.
(10) The consummation of the transactions contemplated herein will not, in and of itself, alter or impair any of the Company Intellectual Property.
(11) To Sellers’ knowledge, no current or former employee, consultant or independent contractor of the Company who holds or held a position within the Company that by its nature involves the creation of Intellectual Property, or who by virtue of the nature of their position within the Company has access to Company confidential information: (A) is in violation of any term or covenant of any employment contract, patent disclosure agreement, invention assignment agreement, nondisclosure agreement, noncompetition agreement or any other contract with any third party by virtue of such employee, consultant or independent contractor being employed by, or performing services for, the Company or using without permission, confidential information or other third party Intellectual Property right as they are currently conductedit relates to the Business; (B) has developed any technology or patentable or otherwise proprietary work for the Company that is subject to any contract under which such employee, consultant or independent contractor has assigned or otherwise granted to any third party any Intellectual Property right or other right in or to such technology or patentable or otherwise proprietary work; or (C) has failed to execute or deliver an enforceable written contract assigning the rights to such employee’s, consultant’s or independent contractor’s contributions to the Company Intellectual Property that may be owned by such persons, which contributions the Company does not otherwise own by operation of law.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Craft Brewers Alliance, Inc.), Equity Purchase Agreement (Anheuser-Busch Companies, Inc.)
Intellectual Property. (a) Within ten (10) Business Days following The Disclosure Letter sets forth a true, correct and complete list, as of the date of this Agreement, of: (i) all patents and patent applications owned by the Company shall provide Parent with or its Subsidiaries; (ii) all registered and unregistered trademarks, service marks and trade names and applications therefor, owned or claimed to be owned by the Company or its Subsidiaries; and (iii) all registered and material unregistered copyrights and copyright applications owned by the Company or its Subsidiaries ((i), (ii) and (iii) collectively, the “Registered IP”).
(b) The Company and its Subsidiaries owns or possesses sufficient legal rights to all Company Intellectual Property without, to the knowledge of the Company, any known conflict with, or infringement of, the rights of others. The Company and its Subsidiaries have taken all steps necessary or prudent to maintain and protect its right, title and interest in and to its Intellectual Property, including in response to any actions taken by governmental authorities, as are customary for similarly situated companies engaged in the same or similar business.
(c) The Disclosure Letter sets forth a correct and complete list of all licenses, agreements, authorizations and/or permissions pursuant to which the Company uses any one (1) or more items of Intellectual Property licensed from third parties in connection with the ongoing business of the Company or its Subsidiaries (“Licensed IP Agreements”), other than software that is generally commercially available at retail. The Company has made available to Velocitas and the Purchaser correct and complete copies of each of the Licensed IP Agreements. Each of the Licensed IP Agreements is legal, valid, binding, enforceable, and in full force and effect. The Company or one of its Subsidiaries, as applicable, has performed all obligations imposed upon it under each of the Licensed IP Agreements, and is not in breach of any of the Licensed IP Agreements, and, to the Company’s knowledge, no other party to any of the Licensed IP Agreements is in breach thereof. Neither Company nor any of its Subsidiaries has granted any sublicense or similar right with respect to the Licensed IP Agreements. Neither Company nor any of its Subsidiaries has received any notice that the other parties to the Licensed IP Agreements intend to cancel, terminate or refuse to renew the same or to exercise or decline to exercise any option or right thereunder. The consummation of the transactions contemplated hereby and by the other Transaction Agreements will not cause a breach of any of the Licensed IP Agreements. The Company and its Subsidiaries have obtained and possesses valid licenses to use all of the software programs present on the computers and other software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s business.
(d) The Disclosure Letter sets forth a complete list of all licenses and agreements pursuant to which the Company or any of its Subsidiaries has granted to any person or party a license or sublicense to use any one (1) or more items of Intellectual Property used by the Company or any of its Subsidiaries in connection with the ongoing business of the Company and its Subsidiaries (“IP Agreements”), exclusive of any evaluation license or non-disclosure agreements related to the Company’s third party evaluation process. The Company has made available to Velocitas and the Purchasers correct and complete copies of each of the IP Agreements. Each of the IP Agreements is legal, valid, binding, enforceable, and in full force and effect. The Company and its Subsidiaries have performed all obligations imposed upon it under each of the IP Agreements, and is neither in breach of, nor has incurred any indemnification obligations under, any one or more of the IP Agreements. Neither Company nor any of its Subsidiaries has granted any sublicense or similar right with respect to the IP Agreements. The consummation of the transactions contemplated hereby and by the other Transaction Agreements will not cause a breach of any of the IP Agreements.
(e) The Company and its Subsidiaries possesses all right, title and interest in and to, and is the sole and exclusive owner of the Registered IP, including, without limitation, all patents, trademarks and copyrights (and any applications for any of the foregoing), listed on the Disclosure Letter. The Company or one of its Subsidiaries is the sole and exclusive licensee of the Licensed IP Agreements, and has the right to use such Intellectual Property in the operation of its business as presently conducted. As of the Closing, neither Company nor any of its Subsidiaries has received any written notice that its rights in such Intellectual Property have been or will be declared unenforceable or otherwise invalid by any court or governmental authority. No infringement, misuse or misappropriation of any such Intellectual Property by a third party has come to the Company’s attention, either orally or in writing.
(f) No third party has made a claim, assertion or, to the Company’s knowledge, threatened assertion, either orally or in writing, that the Company or any of its Subsidiaries is interfering with, infringing, misusing, misappropriating or otherwise conflicting with such third party’s Intellectual Property.
(g) Except as set forth in the Disclosure Letter, the rights of the Company in and to Intellectual Property owned or otherwise used by the Company and its Subsidiaries is free and clear of all material Liens or other restrictions, and the rights of the Company in and to such Intellectual Property is not subject to any outstanding injunction, judgment, order, decree, ruling or charge. No action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand is pending (or, to the Company’s knowledge, threatened) against the Company or any of its Subsidiaries, which challenges the legality, validity, enforceability or ownership of, or the right of the Company or any of its Subsidiaries to use, any one or more items of the Intellectual Property owned or used by the Company or any of its Subsidiaries in connection with its business as currently conducted. Except as set forth in the Schedule of Exceptions, neither Company nor any of its Subsidiaries has agreed to indemnify any person or party for or against any interference, infringement, misappropriation, or other conflict with respect to any one or more items of the Intellectual Property owned by the Company or any of its Subsidiaries.
(h) The Company Subsidiary and its Subsidiaries have taken all steps reasonably necessary to ensure that is it has not interfered with, infringed upon, misappropriated or otherwise come into conflict with any Intellectual Property right of any third party in the subject conduct of an applicationits business as presently conducted, certificateand the Company has no knowledge of any such interference, filinginfringement, registration misappropriation or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarksconflict. To the Company’s Knowledgeknowledge, all material Registered no product or service marketed or sold by the Company violates any license or infringes any Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) any other party. To the Company’s Knowledgeknowledge, the conduct manufacture, marketing, sale or distribution of the business products of the Company or any of its Subsidiaries has not and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate infringe upon or otherwise violate any constitute misappropriation of the Intellectual Property rights of any third party and party. Other than with respect to commercially available software products under standard end-user object code license agreements, except as set forth in the Disclosure Letter, there are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership interests of any kind relating to the Intellectual Property owned by the Company, nor is the Company has not received bound by or a party to any written allegations options, licenses or agreements of any kind with respect to that effectthe patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes of any other Person.
(ci) To the Company’s KnowledgeNo director, no third party is currently misappropriatingofficer, infringing stockholder, employee of or otherwise violating any Intellectual Property rights consultant to or other affiliate of the Company or any of its Subsidiaries owns, directly or indirectly, in whole or in part, any interest in any of the Intellectual Property owned or used by the Company Subsidiaryor any of its Subsidiaries.
(dj) Except as has not had, and would not reasonably be expected to havehave a Material Adverse Effect or as disclosed in filing with the United States Patent and Trademark Office, individually (i) neither Company nor any of its Subsidiaries has disclosed to any person or party, other than in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the ordinary course of business of the Company or any of its Subsidiaries, consistent with past practice and pursuant to valid written non-disclosure and non-use agreements, any proprietary or otherwise confidential information relating to the Intellectual Property owned or licensed by the Company Subsidiaries as it is currently conductedor any of its Subsidiaries; provided, however, that the foregoing representation and warranty in this Section 4.21(d(ii) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company its Subsidiaries have taken commercially at all times maintained reasonable measures procedures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and or any of its Subsidiaries. None of the Company Company, its Subsidiaries (and or, to the Company’s knowledge, each other party to any confidential Licensed IP Agreement or IP Agreement, is under any contractual or other obligation to disclose any proprietary information owned relating to the Intellectual Property owned, developed or licensed by any Person to whom the Company or any of its Subsidiaries (unless required by law) and no event has taken place, including the Company Subsidiaries has a confidentiality obligation). To execution and delivery of this Agreement or the Company’s Knowledge, no such trade secrets other Transaction Agreements and the transactions contemplated hereby and thereby or other material confidential information has been disclosed by any related change in the business activities of the Company or any of its Subsidiaries, that would give rise to such obligation. The Company and its Subsidiaries to any Person other than pursuant to a written agreement restricting have disclosed trade secrets solely as required for the conduct of its business in the ordinary course and solely under non-disclosure and non-use of such trade secrets or any other material confidential information by such Personagreements.
(fk) The IT Assets (i) are Company and its Subsidiaries have obtained and possesses valid licenses to use all of the software programs present on the computers and other software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to connection with the Company’s Knowledgebusiness.
(l) For purposes of this Subsection 2.7, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company shall be deemed to effectively perform, in all material respects, all information technology operations necessary to conduct have knowledge of a patent right if the businesses Company or its Subsidiaries has actual knowledge of the Company and the Company Subsidiaries as they are currently conductedpatent right.
Appears in 2 contracts
Samples: Note, Warrant, and Preferred Stock Purchase Agreement (Sacks Bradley J.), Note, Warrant, and Preferred Stock Purchase Agreement (ULURU Inc.)
Intellectual Property. (a) Within ten (10Section 3.13(a) Business Days following of the date of this AgreementDisclosure Schedules lists, by Company, all Company IP Registrations. All required filings and fees related to the Company shall provide IP Registrations have been timely filed with and paid to the relevant Governmental Authorities and authorized registrars, and all Company IP Registrations are otherwise in good standing. FSH has provided Parent with a correct true and complete list copies of file histories, documents, certificates, office actions, correspondence and other materials related to all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesIP Registrations.
(b) To Section 3.13(b) of the Company’s Disclosure Schedules lists all Company IP Agreements. FSH has provided Parent with true and complete copies of all such Company IP Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Each Company IP Agreement is valid and binding on the respective Company in accordance with its terms and is in full force and effect. Neither any Company nor, to the Companies’ Knowledge, the conduct any other party thereto is in breach of the business of the Company and the Company Subsidiaries as it or default under (or is currently conducted and planned alleged to be conducted does not infringein breach of or default under), misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not provided or received any written allegations notice of breach or default of or any intention to that effectterminate, any Company IP Agreement.
(c) To the Company’s Companies’ Knowledge, no third party is currently misappropriatingthe Companies are the sole and exclusive legal and beneficial, infringing or otherwise violating any and with respect to the Company IP Registrations, record, owner of all right, title and interest in and to the Company Intellectual Property, and has the valid right to use all other Intellectual Property rights used in or necessary for the conduct of the Company Companies’ current business or any Company Subsidiaryoperations, in each case, free and clear of Encumbrances other than Permitted Encumbrances.
(d) Except as has The consummation of the transactions contemplated hereunder will not had, and would not reasonably be expected to have, individually or result in the aggregatepayment of any additional amounts with respect to, a Company Material Adverse Effectnor require the consent of any other Person in respect of, the Company and the Company Subsidiaries own Companies’ right to own, use or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of hold for use any Intellectual Property rights (which is addressed as owned, used or held for use in Section 4.21(b) and Section 4.21(c))the conduct of the Companies’ business or operations as currently conducted.
(e) To the Company’s Companies’ Knowledge, the Company and Companies’ rights in the Company Subsidiaries Intellectual Property are valid, subsisting and enforceable. The Companies have taken all commercially reasonable measures steps to maintain the Company Intellectual Property and to protect and preserve the confidentiality of all trade secrets and any other material confidential information of included in the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonIntellectual Property.
(f) The IT Assets To the Companies’ Knowledge, the conduct of the Companies’ business as currently and formerly conducted, and the products, processes and services of the Companies, have not infringed, misappropriated, diluted or otherwise violated, and do not and will not infringe, dilute, misappropriate or otherwise violate the Intellectual Property or other rights of any Person. To the Companies’ Knowledge, no Person has infringed, misappropriated, diluted or otherwise violated, or is currently infringing, misappropriating, diluting or otherwise violating, any Company Intellectual Property.
(g) There are no Actions (including any oppositions, interferences or re-examinations) settled, pending or, to the Companies’ Knowledge, threatened (including in the form of offers to obtain a license): (i) are in operating order in all material respects and are fulfilling alleging any infringement, misappropriation, dilution or violation of the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, Intellectual Property of any Person by any Company; (ii) have notchallenging the validity, in the past three (3) yearsenforceability, experienced registrability or ownership of any material errors and/or breakdowns, Company Intellectual Property or any Company’s rights with respect to any Company Intellectual Property; or (iii) to the Company’s Knowledgeby any Company or any other Person alleging any infringement, do not contain Unauthorized Codemisappropriation, (iv) to the Company’s Knowledge, have not experienced dilution or violation by any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses Person of the Company and Intellectual Property. No Company is subject to any outstanding or prospective Governmental Order (including any motion or petition therefor) that does or would restrict or impair the use of any Company Subsidiaries as they are currently conductedIntellectual Property.
Appears in 2 contracts
Samples: Merger Agreement (United Insurance Holdings Corp.), Merger Agreement (United Insurance Holdings Corp.)
Intellectual Property. (a) Within ten (10) Business Days following the date Section 3.16 of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct true and complete list of all material registered trademarks and service marks and other material intellectual property that is the subject of any registration or filing with any Governmental Entity, and all pending applications with respect to any of the foregoing, that are owned by the Company or any of its Subsidiaries and used by the Company or any of its Subsidiaries in the conduct of their businesses as currently conducted (“Company Registered IP”). Each item of Company Registered IP is owned exclusively by the Company or one of its Subsidiaries, free and clear of all Liens except for Permitted Liens, subsisting, unexpired and, to the knowledge of the Company, valid and enforceable, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Subject to the knowledge-qualified, noninfringement representation in clause (b) below with respect to third-party patents, either the Company or a Subsidiary of the Company owns, or is licensed or otherwise possesses adequate rights to use (in the manner and to the extent it has used the same), all trademarks, service marks, trade names, domain names, copyrights, patents, trade secrets and other intellectual property of any kind (whether registered or unregistered) used in their businesses as currently conducted and that are material to the businesses of the Company and its Subsidiaries taken as a whole as currently conducted (collectively, the “Company Intellectual Property”). Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (a) there are no pending or, to the knowledge of the Company, threatened claims by any person alleging infringement, misappropriation or dilution by the Company or any of its Subsidiaries of the intellectual property rights of any person or challenging the validity, enforceability or ownership of any Company Intellectual Property owned by or exclusively licensed to the Company or any of its Subsidiaries or the right to use to any other Company Intellectual Property; (b) the conduct of the businesses of the Company and its Subsidiaries has not infringed, misappropriated or diluted, and does not infringe, misappropriate or dilute, any intellectual property rights (other than patents) and, to the knowledge of the Company, any patents of any person; (c) there are no pending claims made by the Company or any of its Subsidiaries alleging infringement, misappropriation or other violation by others of the Company Intellectual Property owned by or exclusively licensed to the Company or any of its Subsidiaries; (d) to the knowledge of the Company, no person is infringing, misappropriating or diluting any Company Intellectual Property owned by or exclusively licensed to the Company or any of its Subsidiaries; (e) the consummation of the Merger and the other transactions contemplated by this Agreement will not result in the loss of, or give rise to any right of any person to terminate or modify any of the Company’s or any Subsidiaries’ rights or obligations under, any agreement under which the Company or any of its Subsidiaries grants to any person, or any person grants to the Company or any of its Subsidiaries, a license or right under or with respect to any Company Intellectual Property; and (f) no Company Intellectual Property owned by the Company or any Company Subsidiary that of its Subsidiaries is subject to any outstanding order, judgment or decree restricting or limiting the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, exploitation or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned licensing thereof by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personits Subsidiaries.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Kroger Co), Merger Agreement (Harris Teeter Supermarkets, Inc.)
Intellectual Property. (a) Within ten (10Section 3.8(a)(i) Business Days following of the Company Disclosure Schedule sets forth a list as of the date of this AgreementAgreement of all material United States and foreign: (A) issued Patents and Patent applications; (B) Trademark registrations and Trademark applications; and (C) Copyright registrations and Copyright applications, in each case, that are Company-Owned IP (such Intellectual Property, the “Company-Owned Registered IP”) and to the knowledge of the Company, Section 3.8(a)(ii) of the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list as of the date of this Agreement of all material United States and foreign: (A) issued Patents and Patent applications; (B) Trademark registrations and Trademark applications; and (C) Copyright registrations and Copyright applications, in each case, that are Company Licensed IP (such Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an applicationProperty, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Company-Licensed Registered Intellectual PropertyIP”). All Company-Owned Registered IP is, together with all material unregistered trademarks. To and to the knowledge of the Company’s Knowledge, all material Company-Licensed Registered Intellectual Property has been maintained effective by IP is, in effect and subsisting, and to the filing knowledge of all necessary filingsthe Company, maintenance other than any pending applications therefor, valid and renewals and timely payment of requisite feesenforceable.
(b) There are no orders, writs, injunctions, judgments, rulings or decrees of, or settlements with, any Governmental Body to which any Acquired Corporation is subject adversely affecting the validity, transferability, scope, use, registrability or enforceability of any material (i) Company-Owned IP and (ii) to the knowledge of the Company, Company Licensed IP.
(c) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole, no Legal Proceeding (including any interference, opposition, reissue, reexamination, International Trade Commission investigation and similar proceedings) is (or has since January 1, 2016 been) pending or, to the knowledge of the Company, threatened in writing, by any Person challenging the claim construction, validity, enforceability, priority, inventorship or ownership of any Company-Owned IP or to the knowledge of the Company, material Company Licensed IP (other than, in each case, in connection with the prosecution of applications for registration of such Intellectual Property). Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole, no Legal Proceeding is (or has since January 1, 2016 been) (i) pending, or to the knowledge of the Company, threatened in writing, by any Person alleging that any Acquired Corporation is infringing, misappropriating or otherwise violating the Intellectual Property of such Person; or (ii) pending, or threatened in writing, by the Company that any Person is infringing, misappropriating or otherwise violating any Company IP.
(d) To the knowledge of the Company’s Knowledge, (i)(A) the conduct of the business of the Company and the Company Subsidiaries Acquired Corporations as it is currently conducted does not, (B) the manufacture of JCAR017 and planned JCARH125, as currently conducted does not, and as contemplated to be conducted does not for purposes of commercialization of JCAR017 and JCARH125 will not, and (C) the sale of JCAR017 and JCARH125 will not, in each case, infringe, misappropriate or otherwise violate any the Intellectual Property rights of any third party Person in any material respect; and the Company has not received any written allegations to that effect.
(cii) To the Company’s Knowledgeno Person is infringing, no third party is currently misappropriating, infringing misappropriating or otherwise violating any Intellectual Property rights Company-Owned IP or Company-Licensed IP, in any material respect. For purposes of this paragraph (d), JCAR017 and JCARH125 refer to such products, including the manufacturing process therefor, as used in clinical trials being conducted by the Company as of the date hereof. Notwithstanding anything to the contrary herein, the representations and warranties set forth in this Section 3.8(d) and in Section 3.8(c) are the sole and exclusive representations and warranties of the Company with respect to any actual or any Company Subsidiaryalleged infringement, misappropriation or other violation of Intellectual Property.
(de) Except as has not had, and would not reasonably be expected to havebe, individually or in the aggregate, material to the Company and its Subsidiaries taken as a Company Material Adverse Effectwhole, the Company and the Company Subsidiaries own or are licensed to useowns (in each case, free from all Encumbrances other than Permitted Encumbrances), or otherwise possess has a valid rights license to or other right to use, all of the Company-Owned IP, Company Licensed IP and other Intellectual Property necessary to used in the conduct of the business of the Company and the Company Subsidiaries Acquired Corporations as it is currently conducted; provided, however, provided that the foregoing representation and warranty in this Section 4.21(d3.8(e) shall is not constitute or be deemed or construed as any a representation or warranty with respect to infringement, misappropriation, misappropriation or other violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(ef) To the Company’s Knowledge, the Company and the Company Subsidiaries The Acquired Corporations have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Trade Secrets constituting Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation)IP. To the Company’s Knowledgeknowledge, since January 1, 2016, no such trade secrets or other material confidential information Trade Secret constituting Company-Owned IP has been disclosed or accessed by the Company or any Company Subsidiaries to any Person in a manner that has resulted in the loss of trade secret or other than pursuant to a written agreement restricting the disclosure and use rights of such trade secrets any Acquired Corporation thereto or any other material confidential information by such Persontherein.
(fg) The IT Assets Acquired Corporations have taken commercially reasonable measures to maintain the confidentiality of all information that (i) alone or in combination with other information held by the Acquired Corporations can be used to identify, contact or precisely locate a natural person or can be linked to a natural person; or (ii) is governed, regulated or protected by one or more Legal Requirements regarding the security of personally identifiable information (collectively, “Personal Information”).
(h) The Acquired Corporations are and since January 1, 2016 have been in operating order compliance in all material respects with applicable Legal Requirements, as well as their own policies, relating to privacy, data protection, and are fulfilling the purposes collection and use of Personal Information collected, used, or held for which they were acquireduse by any Acquired Corporations, licensed and no material claims or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledgeknowledge, do not contain Unauthorized Codeinvestigations by Governmental Bodies, (iv) are pending or to the Company’s Knowledgeknowledge, have not experienced threatened in writing, against any material Acquired Corporation alleging a violation of any Information Privacy and Security Laws.
(i) Since January 1, 2016, there has been no security breaches, and (v) are considered by breach in the Company to effectively perform, in all material respects, all information technology operations necessary systems used by or on behalf of any Acquired Corporation and no unauthorized access, use, acquisition or disclosure of any Personal Information in their possession and control, except as would not reasonably be expected to conduct be, individually or in the businesses of aggregate, material to the Company and its Subsidiaries taken as a whole. The Acquired Corporations have taken commercially reasonable actions to protect the Company Subsidiaries as they are currently conductedsecurity and integrity of their servers, systems, sites, circuits, networks, interfaces, platforms and other information technology systems.
Appears in 2 contracts
Samples: Merger Agreement (Juno Therapeutics, Inc.), Merger Agreement (Celgene Corp /De/)
Intellectual Property. (a) Within ten (10) Business Days following the date Each of this Agreement, the Company shall provide Parent with a correct and complete list its Subsidiaries owns or is licensed or otherwise possesses legally enforceable rights to use all patents, trademarks, trade names, service marks, copyrights and any applications therefor, technology, know-how, computer software programs or applications and tangible or intangible proprietary information or materials (including any registrations or applications for registration of all Intellectual Property owned by any of the Company or any Company Subsidiary that is the subject of an applicationforegoing) (collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of that are used in the business of the Company and the Company its Subsidiaries as it is currently conducted and planned conducted, except where such failures to be conducted does not infringe, misappropriate own or otherwise violate any validly license such Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse EffectEffect with respect to the Company. Except as would not, individually or in the aggregate, have a Material Adverse Effect with respect to the Company: (A) neither the Company nor any of its Subsidiaries is, nor will it be as a result of the execution and delivery of this Agreement by the Company or the performance of its obligations hereunder, in violation of any licenses, sublicenses and other agreements as to which the Company or any of its Subsidiaries, is a party and pursuant to which the Company or any of its Subsidiaries is authorized to use any third-party patents, trademarks, service marks, copyrights, trade secrets or computer software (collectively, “Third-Party Intellectual Property Rights”); (B) no claims with respect to (I) the patents, registered and material unregistered trademarks and service marks, registered copyrights, trade names and any applications therefor, trade secrets or computer software owned by the Company or any of its Subsidiaries (collectively, the “Company Intellectual Property Rights”); or (II) Third-Party Intellectual Property Rights are currently pending or, to the knowledge of the Company, are threatened by any person; and (C) the Company does not know of any valid grounds for any bona fide claims (I) against the use by the Company or any of its Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all of any Company Intellectual Property necessary to conduct Rights or Third-Party Intellectual Property Rights used in the business of the Company and the Company or any of its Subsidiaries as it is currently conducted; provided(II) challenging the ownership, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute validity or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation enforceability of any Company Intellectual Property rights Rights; or (which is addressed in Section 4.21(bIII) and Section 4.21(c)).
(e) To challenging the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality license or legally enforceable right of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company its Subsidiaries to use any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonThird-Party Intellectual Rights.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Foothill Independent Bancorp), Merger Agreement (Foothill Independent Bancorp)
Intellectual Property. The (ai) Within ten patents, patent applications, --------------------- inventions and discoveries that may be patentable (10) Business Days following the date of this Agreementcollectively, the Company shall provide Parent with a correct "Patents"), (ii) registered and complete list of all Intellectual Property owned unregistered trademarks, trade names, company names, fictional business names and service marks (collectively, the "Marks"), (iii) copyrights (the "Copyrights"), and (iv) know how, trade secrets, confidential information, customer lists, software, technical information, data, process technology, plans and drawings (collectively, the "Trade Secrets") owned, used or licensed by the Company or any Company Subsidiary that is (collectively, the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered "Intellectual Property”), together with ") are all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all those necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of to enable the Company and the Company Subsidiaries to conduct and to continue to conduct the Business as it is currently conducted conducted. Schedule 4.14 contains a complete and planned to be conducted does not infringeaccurate list of all ------------- material Patents, misappropriate Marks and Copyrights and a description of all material Trade Secrets owned or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of used by the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company list of all material license agreements and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty arrangements with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by Intellectual Property to which the Company or any Company Subsidiaries to any Person other than pursuant to Subsidiary is a written agreement restricting party, whether as licensee, licensor or otherwise (the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets "Intellectual Property Licenses"). Except as set forth on Schedule 4.14, (i) are in operating order in all material respects of the Intellectual ------------- Property is owned, or used under a valid Intellectual Property License, by the Company or one of the Company Subsidiaries, and, is free and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, clear of all Liens and other adverse claims; (ii) have notto the knowledge of the Stockholders or the Company, in neither the past three (3) yearsCompany nor any Company Subsidiary has infringed on or misappropriated, experienced is now infringing on or misappropriating, or has received any material errors and/or breakdownsnotice that it is infringing on, misappropriating, or otherwise conflicting with the intellectual property rights of any third parties; (iii) there is no claim pending or, to the knowledge of the Stockholders or the Company’s Knowledge, do not contain Unauthorized Codethreatened against the Company or any Company Subsidiary with respect to the alleged infringement or misappropriation by the Company or Company Subsidiary, or a conflict with, any intellectual property rights of others; (iv) to the knowledge of the Stockholders or the Company’s Knowledge, have the operation of any aspect of the Business in the manner in which it has heretofore been operated or is presently operated does not experienced give rise to any material security breaches, such infringement or misappropriation; and (v) are considered by to the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses knowledge of the Company and Stockholders or the Company Subsidiaries as they are currently conductedCompany, there is no infringement or misappropriation of the Intellectual Property by a third party or claim, pending or threatened, against any third party with respect to the alleged infringement or misappropriation of the Intellectual Property by such third party.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Compass International Services Corp), Stock Purchase Agreement (Compass International Services Corp)
Intellectual Property. (a) Within ten (10Section 4.17(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct complete and complete accurate list of all (i) patents and patent applications and trademark, service xxxx and copyright registrations and applications for registration, in each case, that are included in the Company Intellectual Property owned (collectively, “Company Registered Intellectual Property”) and (ii) licenses of Intellectual Property (other than licenses concerning commercially available off-the-shelf software) granted by third parties to the Company or any of its Subsidiaries that are material to the businesses of Company or any of its Subsidiaries (“Licensed Intellectual Property”).
(b) The Company or one of its Subsidiaries: (i) is the owner of all right, title and interest in and to each item of Company Intellectual Property free and clear of all Liens (other than Permitted Liens) or (ii) is entitled to use and exploit each item of Licensed Intellectual Property pursuant to a valid, sufficient and enforceable written license.
(c) Except as set forth in Section 4.17(c) of the Company Disclosure Schedule, (i) no Proceeding is currently pending, unresolved or threatened in writing by any Person in the past three (3) years that the use by the Company or any of its Subsidiaries of the Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the or conduct of the business businesses of the Company or any of its Subsidiaries infringes, dilutes, violates, misappropriates or otherwise conflicts with the material Intellectual Property of a third party in any material respect; and the Company Subsidiaries as it (ii) no Proceeding is currently conducted and planned pending, unresolved or to be conducted does not infringethe Knowledge of the Company, misappropriate or otherwise violate any Intellectual Property rights of threatened in writing against any third party and involving an infringement, dilution, violation, misappropriation or other conflict by or with such third party of any Company Intellectual Property and, to the Company has not received any written allegations to that effect.
(c) To Knowledge of the Company’s Knowledge, no third party is currently misappropriatingengaging in any activity that infringes, infringing dilutes, violates, misappropriates or otherwise violating conflicts with any material Company Intellectual Property rights of the Company or any Company SubsidiaryProperty.
(d) Except as has not had, and would not reasonably be expected to have, individually or set forth in the aggregate, a Company Material Adverse Effect, Section 4.17(d) of the Company Disclosure Schedule, all material Company Intellectual Property is unexpired and valid, subsisting and enforceable in all material respects. At the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to useClosing, all Intellectual Property licensed to the Company and its Subsidiaries will remain available for use by the Company and its Subsidiaries on the same terms and conditions in all material respects applicable to the Company and its Subsidiaries prior to Closing.
(e) The Company and its Subsidiaries take actions to protect and enforce the Company Intellectual Property, including to maintain the confidentiality of the material trade secrets forming a part of the Company Intellectual Property and such actions are appropriate and reasonable in the industry in which the Company and its Subsidiaries operates and in compliance with applicable law. To the Knowledge of the Company, no such trade secrets have been disclosed or authorized to be disclosed to any Person, other than in the ordinary course of business pursuant to an enforceable written confidentiality and non-disclosure agreement.
(f) Company and its Subsidiaries own or have a valid right to access and use all Systems. The Systems that are currently used by the Company and its Subsidiaries constitute all the information and communications technology reasonably necessary to conduct carry on the businesses of the Company and its Subsidiaries. The consummation of the transactions contemplated hereby will not impair or interrupt in any material respect the Company and its Subsidiaries’ access to and use of, or their respective right to access and use, the Systems or any third party databases or third party data used in connection with the business of the Company and the Company its Subsidiaries as it is currently conducted; provided. The Company and its Subsidiaries have implemented firewall protections, howeverimplemented virus scans and taken commercially reasonable steps in accordance with industry standards to secure the Systems from unauthorized access or use by any Person. To the Knowledge of the Company, that the foregoing representation and warranty in this Section 4.21(dthere: (x) shall not constitute have been no unauthorized intrusions or be deemed or construed as any representation or warranty breaches of security with respect to infringement, misappropriation, the Systems; (y) has not been any material malfunction of the Systems that has not been remedied or violation of replaced in all respects; and (z) has been no material unplanned downtime or service interruption with respect to any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) Systems. To the Knowledge of the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any there are no viruses, disabling routines or other material confidential information contaminants in the Systems of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personits Subsidiaries.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Del Taco Restaurants, Inc.), Merger Agreement (Jack in the Box Inc /New/)
Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with 4.16.1 Schedule 4.16 sets forth a correct true and complete list and a brief description of all Intellectual Property, including all Intellectual Property owned by Company ("Owned Intellectual Property") and a true and complete list and a brief description, any license, sublicense, agreement, or permission to use Intellectual Property ("Licensed Intellectual Property"). Except as otherwise described in Schedule 4.16, in each case where a registration or application for registration listed in Schedule 4.16 is held by assignment, the assignment has been duly recorded. To the Knowledge of the Company or any the Controlling Shareholders, the rights of the Company Subsidiary that is the subject of an application, certificate, filing, registration in or other document issued by, filed to such Intellectual Property do not conflict with or recorded infringe on the rights of any other Person, and the Company and Controlling Shareholders have not received any claim or written notice from any Person to such effect.
4.16.2 Except as disclosed in Schedule 4.16;
(i) all the Owned Intellectual Property is owned by the Company free and clear of any Governmental Authority Encumbrance except Permitted Encumbrances;
(ii) the Company has the right, pursuant to valid and enforceable licenses, to use the Licensed Intellectual Property in the manner in which the Licensed Intellectual Property is currently being used; and
(iii) no Actions are pending (nor, to the Company's and Controlling Shareholders' Knowledge, have been threatened) against the Company either (A) based upon, or domain name registrar (challenging, or seeking to deny or restrict, the “Registered use by the Company of any of the Intellectual Property”), together with all material unregistered trademarksor (B) alleging that any services provided or products sold by the Company are being provided or sold in violation of any patents, trademarks or intellectual property rights of any Person. To the Company’s 's and Controlling Shareholders' Knowledge, all material Registered no Person is using any patents, copyrights, trademarks, service marks, trade names or trade secrets that infringe upon the Owned Intellectual Property or upon the rights of the Company therein. Except as disclosed in Schedule 4.16, the Company has been maintained effective not granted any license or other right to any other Person with respect to the Owned Intellectual Property. The consummation of the transactions contemplated by this Agreement will not result in the termination or impairment of any of the Owned Intellectual Property or any of the rights of the Company in any of the Licensed Intellectual Property.
4.16.3 The Intellectual Property described in Schedule 4.16 constitutes all the Intellectual Property used or held by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, Company in the conduct of the business Business and there are no other items of Intellectual Property that are material to the Company or the Business.
4.16.4 As to each item of Intellectual Property that any third party owns and that Company uses pursuant to licenses, sublicenses, agreements or permissions, Company has delivered to Purchaser copies of all such licenses, sublicenses, agreements and permissions, and with respect to each such item of Intellectual Property:
(i) the licenses, sublicenses, agreements, or permissions, covering the item is legal, valid, binding, enforceable and in full force and effect;
(ii) the licenses, sublicenses, agreements, or permissions will continue to be legal, valid, binding or enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby;
(iii) neither the Company, nor to the Knowledge of the Controlling Shareholders or the Company, any other party to the licenses, sublicenses, agreements, or permissions is in breach or default, and no event has occurred which with notice or lapse of time, would constitute a breach or default or permit termination, modification, or acceleration thereunder;
(iv) the licenses, sublicenses, agreements or permissions is not subject to any outstanding injunction, judgment, order, decree, ruling or charge;
(v) no Action is pending or to the Company's or Controlling Shareholders' Knowledge, is threatened which challenges the legality, validity, or enforceability; and
(vi) except as disclosed in Schedule 4.16, Company has not granted any sublicenses or similar right with respect to such licenses, sublicenses, agreements or permissions.
4.16.5 To the Knowledge of the Company and or the Controlling Shareholders, the Company Subsidiaries as it is currently conducted and planned to be conducted does has not infringeinterfered with, misappropriate infringed upon, misappropriated, or otherwise violate come into conflict with any Intellectual Property rights of any third party and parties. To the Knowledge of the Company has not received any written allegations to that effect.
(c) To or the Company’s KnowledgeControlling Shareholders, no third party is currently misappropriatinghas interfered with, infringing infringed upon, misappropriated or otherwise violating come into conflict with any Intellectual Property rights of Company. Further, to the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Knowledge of Company and the Controlling Shareholders, Company Subsidiaries own or are licensed to usewill not interfere with, infringe, misappropriate, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty come into conflict with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information third parties as a result of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any continued operation of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries its Business as they are currently presently conducted.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Meridian Bioscience Inc), Stock Purchase Agreement (Meridian Bioscience Inc)
Intellectual Property. Section 3.17.1 The Company Disclosure Schedule sets forth a true and complete list of (ai) Within ten all United States, state and foreign registrations of and applications for patents, trademarks, domain names, and copyrights owned by the Company (10“Company Owned IP”); and (ii) Business Days following all in-bound patent licenses, trademark licenses and copyright licenses (including software) which, in each case, is material to the business of the Company as currently conducted (“Company Licensed IP” and to the extent exclusively licensed to the Company, “Company Exclusively Licensed IP”) (notwithstanding anything to the contrary herein, Company Licensed IP shall not include, and therefore the Company Disclosure Schedule need not include, any licenses for click-wrap, shrink-wrap or off-the-shelf software).
Section 3.17.2 No holding, decision, or judgment has been rendered in any action or proceeding before any court or administrative authority of competent jurisdiction denying the validity of, the Company’s right to register or own the Company Owned IP, or the Company’s right to use or enforce any Company Owned IP that is material to the business of the Company or Company Exclusively Licensed IP that is material to the business of the Company.
Section 3.17.3 To the Company’s knowledge, except as set forth in the Company Disclosure Schedule, no third party is infringing upon or otherwise violating any Company Owned IP or Company Exclusively Licensed IP.
Section 3.17.4 To the Company’s knowledge, except as set forth in the Company Disclosure Schedule, the conduct of the Company’s business in the manner currently conducted does not infringe upon or otherwise violate any trademark, patent, copyright, trade secret or other Intellectual Property right owned or controlled by a third party.
Section 3.17.5 All material patents and patent applications, trademark registrations and applications included in the Company Owned IP and Company Exclusively Licensed IP (A) are subsisting, in full force and effect, (B) to the knowledge of the Company, are valid and enforceable, (C) have not expired, been canceled or abandoned (except in the ordinary course of business) and (D) have had paid all registration, maintenance and renewal fees necessary to preserve the rights of the Company in and to such Intellectual Property or will be paid prior to being prejudiced by such failure.
Section 3.17.6 The Company has taken actions reasonably necessary to maintain and protect the secrecy, confidentiality and value of trade secrets and other confidential information which is material to the Company. All present employees and independent contractors of, and consultants to, the Company, and to the Company’s knowledge all past employees and independent contractors of, and consultants to, the Company during the immediately preceding three (3) years who have had access to Company confidential information have entered into agreements pursuant to which such employee, independent contractor or consultant agrees to protect the confidential information of the Company and, except as set forth in such agreements as are described on the Company Disclosure Schedule, assign to the Company all Intellectual Property material to the business of the Company authored, developed or otherwise created by such employee, independent contractor or consultant in the course of his, her or its employment or other relationship with the Company without further consideration or any restrictions or obligations on the use or ownership of such Intellectual Property.
Section 3.17.7 The Company owns or otherwise has the right or license to use all Intellectual Property reasonably necessary to operate the business of the Company as it is being conducted as of the Effective Time, except where the failure to so own or have the right or license to use would not reasonably be expected to cause a Company Material Adverse Effect.
Section 3.17.8 Except as set forth in the Company Disclosure Schedule, at the Effective Time, the Surviving Corporation shall have the right and license to use the Company Owned IP and the Company Licensed IP, in the same manner and subject to the same limitations and scope as the Company had immediately prior to the Effective Time, except as would not reasonably be expected to cause a Company Material Adverse Effect.
Section 3.17.9 As of the date of this Agreement, the Company shall provide Parent with a correct computer systems, including the software, firmware, hardware, networks, interfaces, platforms and complete list of all Intellectual Property owned related systems, used by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, in the conduct of its business are sufficient for the needs of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company SubsidiaryEffective Time.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Pernix Therapeutics Holdings, Inc.), Merger Agreement (Somaxon Pharmaceuticals, Inc.)
Intellectual Property. (a) Within ten Section 3.07(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all (10i) Business Days following issued and pending patents and patent applications, (ii) registered and applications for registration of trademarks and service marks, (iii) registered Internet domain names, and (iv) registered copyrights, in each case, included in the Company IP owned by the Company or any of its Subsidiaries and (v) any license agreement governing Company Licensed IP.
(b) The Company and its Subsidiaries own or possess the right to use (i) to the Knowledge of the Company, all valid and enforceable patents and patent applications, (ii) all valid and enforceable trademarks, trademark registrations, service marks, service xxxx registrations, Internet domain name registrations, copyrights, copyright registrations, licenses, trade secret rights (the items described in clauses (i) and (ii) collectively, “Intellectual Property Rights”) and (iii) inventions, software, works of authorships, trade names, databases, formulae, know how, Internet domain names and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information, systems, or procedures) (collectively, “Intellectual Property Assets”, and together with the Intellectual Property Rights, the “Company IP”) necessary to conduct their respective businesses as currently conducted, and as proposed to be conducted and described in the Company SEC Documents.
(c) The Company IP owned by the Company or any of its Subsidiaries is owned solely and exclusively by the Company or its Subsidiary, free and clear of any Liens other than Permitted Liens. To the Knowledge of the Company, the Company IP owned by the Company and the Licensed IP, is valid, enforceable, subsisting and in full force and effect. None of the Company IP owned by the Company, and to the Knowledge of the Company, none of the Licensed IP, is or has been subject to any pending, concluded, or, to the Knowledge of the Company, threatened, Legal Action or other proceeding (including any interference, derivation, re-examination, opposition, cancellation reissue or other post-grant proceeding, but excluding customary office actions issued by an application examiner with the United States Patent and Trademark Office or its foreign equivalent in the ordinary course of business in connection with the prosecution of a pending application for a patent or a trademark registration) that challenges the validity, enforceability, use, right to use, scope, duration, effectiveness or ownership of any item of such Company IP.
(d) Each item of Company IP owned by the Company or any of its Subsidiaries immediately subsequent to the Effective Time will be owned and available for use by the Surviving Company on the same terms and conditions as are in effect immediately prior to the Effective Time. Each item of Licensed IP will be licensed to and available for use by the Surviving Company on the same terms and conditions as are in effect immediately prior to the Effective Time.
(e) The Company and its Subsidiaries have not received any opinion from their legal counsel concluding that any activities of their respective businesses infringe, misappropriate, or otherwise violate, valid and enforceable Intellectual Property Rights of any other person, and have not received written notice of any challenge by any other person to the rights of the Company and its Subsidiaries with respect to any Intellectual Property Rights or Intellectual Property Assets owned or used by the Company or its Subsidiaries. To the Knowledge of the Company, the Company and its Subsidiaries’ respective businesses as now conducted do not give rise to any infringement of, any misappropriation of, or other violation of, any valid and enforceable Intellectual Property Rights of any other person.
(f) All licenses for the use of the Intellectual Property Rights described in the Company SEC Documents are valid, binding upon, and enforceable by or against the parties thereto in accordance to its terms. The Company has complied in all material respects with, and is not in breach nor has received any asserted or threatened claim of breach of, any license to any Intellectual Property Rights or Intellectual Property Assets license, and the Company has no Knowledge of any breach or anticipated breach by any other person of any such license.
(g) Except as described in the Company SEC Documents, no claim has been made against the Company alleging the infringement by the Company of any patent, trademark, service xxxx, trade name, copyright, trade secret, license in or other intellectual property right or franchise right of any person. The Company has taken all reasonable steps to protect, maintain and safeguard its Intellectual Property Rights, including the execution of appropriate nondisclosure and confidentiality agreements. Except as disclosed in Section 3.07(g) of the Company Disclosure Letter, the consummation of the transactions contemplated by the Transaction Documents shall not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s right to own, use, or hold for use any of the Intellectual Property Rights as owned, used or held for use in the conduct of the business as currently conducted.
(h) The Company has at all times complied in all material respects with all applicable laws relating to privacy, data protection, and the collection and use of personal information collected, used, or held for use by the Company in the conduct of the Company’s business. Since January 1, 2017, the Company’s and each of its Subsidiaries’ collection, storage, use and dissemination of personally identifiable information and any other data that could reasonably be used to identify any consumer, patient, employee or other person or any of their respective devices has, at all times complied in all material respects with all applicable Law, privacy policies and terms of use and other contractual obligations relating to privacy, data protection or data security. Since January 1, 2017, no breach, security incident, or violation of any data security policy in relation to personally identifiable information or other data that could reasonably be used to identify any consumer, patient, employee or other person or any of their respective devices has occurred, or is or was threatened, and there has been no unauthorized or illegal processing of such data. The Company and each of its Subsidiaries maintain commercially reasonable security procedures to protect against loss, misuse, unauthorized access, disclosure, and destruction of personally identifiable information and other data pertaining to consumers, patients, employees or other persons. Since January 1, 2017, neither the Company nor any of its Subsidiaries has received written, or to the Knowledge of the Company, any non-written, notice of any claims (including any investigation or notice from any Governmental Authority) that have been asserted or threatened against the Company or any of its Subsidiaries alleging, any violation of any Person’s privacy or personally identifiable information or data rights or non-compliance with applicable Laws, privacy policies or terms of use or other contractual obligations relating to privacy, data protection or data security.
(i) The Company has taken all necessary actions to obtain ownership of or a license to all works of authorship and inventions made by its employees, consultants and contractors during the time they were employed by or under contract with the Company and which relate to the Company’s business. All key employees have signed confidentiality and invention assignment agreements with the Company.
(j) To the Knowledge of the Company, the Company has complied with the United States Patent and Trademark Office’s duty of candor, good faith and disclosure and best mode requirement for any patent applications filed by the Company and still owned by the Company as of the date of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance requirements for patentability and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights enforceability of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not hadresultant patents, and would not reasonably be expected to have, individually or has made no material misrepresentation in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))such applications.
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Cerecor Inc.), Merger Agreement (Cerecor Inc.)
Intellectual Property. (ai) Within ten The Company owns, is licensed or otherwise possesses legally enforceable rights to use (10in each case, free and clear of any liens or encumbrances of any kind), the patents, know-how, trademarks, service marks, brand names and computer software and any applications for such patents, know-how, trademarks, tradenames, service marks and brand names, computer software or other intellectual property and proprietary rights used in or necessary for the conduct of its business as currently conducted (collectively, "Intellectual Property"). The Intellectual Property filed with the United States Patent and Trademark Office is listed in Section 3.1(n) Business Days following of the date of Disclosure Schedule. Each license or other agreement relating to Intellectual Property to which the Company is a party has been complied with by the Company in all material respects and is in full force and effect; (ii) the Company has not licensed or otherwise granted to others any rights to use any such Intellectual Property except as contemplated by this Agreement, the Company shall provide Parent with a correct Notes and complete list the License Agreement (as defined below) or as set forth in Section 3.1(n) of all the Disclosure Schedule; (iii) to the best of the Company's knowledge and except as set forth in Section 3.1(n) of the Disclosure Schedule, the use of such Intellectual Property owned by the Company does not infringe on or otherwise violate the rights of any person and is in accordance with any applicable license pursuant to which the Company acquired the right to use such Intellectual Property; and (iv) to the knowledge of the Company and except as set forth in Section 3.1(n) of the Disclosure Schedule, no person is challenging, infringing on or otherwise violating any right of the Company with respect to such Intellectual Property. To the Company's knowledge, all such patents, trademarks, service marks, and copyrights held by the Company or licensed by the Company are valid and subsisting. The Company is not, nor will it be as a result of the execution and delivery of this Agreement or the performance of its obligations hereunder, be in breach of any Company Subsidiary that is the subject of an applicationlicense, certificate, filing, registration sublicense or other document issued byagreement, filed with or recorded by any Governmental Authority or domain name registrar (relating to the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations right to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any such Intellectual Property rights of except for such breaches that individually or in the Company or any Company Subsidiary.
(d) Except as has not had, and aggregate would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Medarex Inc), Merger Agreement (Houston Biotechnology Inc)
Intellectual Property. (a) Within ten (10Schedule 4.14(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedules sets forth a correct true and complete list of all Intellectual Property owned by Patents, registered Marks and applications to register any Marks, material unregistered Marks, registered Copyrights and applications for registration of Copyrights included in the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) Except as disclosed in Schedule 4.14(a) of the Disclosure Schedules, the Company is the sole owner of all right, title and interest in and to the Company Intellectual Property listed in Schedule 4.14(a) of the Disclosure Schedules, free and clear of any Encumbrances (except for Permitted Encumbrances or any Encumbrances arising under the Intellectual Property Licenses or from any infringement, misappropriation, violation, or dilution of Intellectual Property owned by any third Person of which the Company does not have Knowledge). To the Knowledge of the Company’s Knowledge, the conduct Company is the sole owner of, or has valid rights to use, sell, license and commercially exploit, as the case may be, all other Company Intellectual Property, Company Technology and Intellectual Property licensed to the Company under the Intellectual Property Licenses as the same is used, sold, licensed and commercially exploited in the Business as presently conducted, free and clear of all Encumbrances (except for Permitted Encumbrances) or obligations to others (except for the Intellectual Property Licenses). To the Knowledge of the business Company, the Company Intellectual Property, the Company Technology and the Intellectual Property licensed to the Company under the Intellectual Property Licenses and any other licenses of Intellectual Property granted to the Company include all of the Company Intellectual Property and Technology necessary to enable the Company Subsidiaries as it to conduct the Business in the manner in which such Business is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectbeing conducted.
(c) To the Knowledge of the Company’s Knowledge, no third party is currently misappropriatingthe operation of the Business as presently conducted, infringing including the development, manufacturing, licensing, marketing, importation, offer for sale, sale or otherwise violating use of any Intellectual Property rights products and services of the Company, the use or other exploitation by the Company of the Company Intellectual Property, Company Technology and Intellectual Property and Technology owned by third Persons and licensed to the Company, and the present business practices, methods and operations of the Company, do not infringe, dilute, constitute an unauthorized use or misappropriation of, or violate any Intellectual Property, Technology, right of privacy, right of publicity, or similar right of any Person. To the Knowledge of the Company, no Person is infringing, diluting, violating or misappropriating any Company SubsidiaryIntellectual Property or Company Technology, and no claims of infringement, dilution, violation or misappropriation of any Company Intellectual Property or Company Technology have been made against any Person by the Company.
(d) Except as The Company has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries its Trade Secrets (and including any confidential information owned by any a third Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). Except as specified in Schedule 4.14(d) of the Disclosure Schedules, each employee, consultant and independent contractor of the Company involved in the creation or development of any products, services, Intellectual Property or Technology related to the Business has entered into a written non-disclosure and invention assignment agreement with the Company in a form provided to Buyer prior to the date hereof.
(e) Except as specified in Schedule 4.14(e) of the Disclosure Schedules, no claim has been asserted in writing (including by electronic mail) against the Company that the use or exploitation by the Company of any Company Intellectual Property, Company Technology or Intellectual Property or Technology owned by any third Person and licensed to the Company infringes, dilutes, violates or constitutes an unauthorized use or misappropriation of any Intellectual Property or Technology of any third Person, which infringement, dilution, violation, unauthorized use or misappropriation would reasonably be expected to have a Material Adverse Effect on the Company, or challenging the ownership, validity or enforceability of any Company Intellectual Property or the ownership of any Company Technology. To the Knowledge of the Company, the Company Intellectual Property, and all of the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by rights in and to the Company or any Intellectual Property, the Company Subsidiaries Technology and the Intellectual Property licensed to any Person other than pursuant to a written agreement restricting the disclosure Company under the Intellectual Property Licenses, are valid and use of such trade secrets or any other material confidential information by such Personenforceable.
(f) The IT Assets (iCompany has no proprietary software. Except as specified in Schedule 4.14(f) are of the Disclosure Schedules and except pursuant to the Intellectual Property Licenses listed in operating order in all material respects and are fulfilling Schedule 4.18(a)(ix) of the purposes for which they were acquiredDisclosure Schedules, licensed the Company has no obligation to pay any royalty, license fee or established similar payment to any third Person, whether such payment consists of cash in an efficient manner without material downtime amount that exceeds, or errorsof any other form of consideration having a fair market value in excess of, $100,000 per year for the right to use any Intellectual Property or Technology.
(iig) have not, Neither this Agreement nor any transaction contemplated by this Agreement will result in the past three (3) years, experienced grant of any material errors and/or breakdowns, (iii) license with respect to the Company’s Knowledge, do not contain Unauthorized Code, (iv) any Company Intellectual Property or Company Technology to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by third Person pursuant to any agreement to which the Company is a party as of the date hereof. The consummation of the transactions contemplated hereby will not result in the loss or impairment of Buyer’s right to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses own or use any of the Company and Intellectual Property, Company Technology or Intellectual Property licensed to the Company Subsidiaries under any Intellectual Property License pursuant to any agreement to which the Company is a party as they are currently conductedof the date hereof.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.), Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.)
Intellectual Property. (a) Within ten (10Section 3.13(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of (i) all Intellectual Property owned by the each Group Company or any (“Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with ) and (ii) all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesCompany IP Agreements.
(b) To Each Group Company is the Company’s Knowledgeexclusive owner of the entire and unencumbered right, title and interest in and to the Company Intellectual Property, and has a valid license to use the Licensed Intellectual Property in connection with its Business. Each Group Company is entitled to use all Company Intellectual Property and the Licensed Intellectual Property in the continued operation of its Business without limitation, subject only to the terms of the Company IP Agreements.
(c) The Company Intellectual Property and the Licensed Intellectual Property include all of the Intellectual Property required for the conduct of or used in connection with the Business, and there are no other items of Intellectual Property that are material to the conduct of the business Business. The Company Intellectual Property and, to the Knowledge of the Warrantors, the Licensed Intellectual Property are subsisting, valid and enforceable, and have not been adjudged invalid or unenforceable in whole or part. Each item of Company Intellectual Property registered with a Government Authority is in compliance with all applicable Laws, and all filings, payments and other actions required to be made or taken to maintain such Intellectual Property rights in full force and effect have been made or taken.
(d) The conduct of the Business and the use of the Company Intellectual Property and the Company Subsidiaries as it is currently conducted and planned to be conducted does Licensed Intellectual Property, do not conflict with, infringe, misappropriate or otherwise violate any the Intellectual Property rights of any third party party, and no Action alleging any of the foregoing is pending, and no claim has been asserted against any Group Company has not received alleging any written allegations to that effect.
(c) of the foregoing. To the Company’s KnowledgeKnowledge of the Warrantors, there are no third party is currently misappropriating, infringing infringements or otherwise violating other violations of any Company Intellectual Property rights by any third party. No Company Intellectual Property is subject to any pending, or to the Knowledge of the Warrantors, threatened governmental Order or Action challenging or restricting the use of such Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct or that would impair the business validity or enforceability of the such Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(e) To None of the Company’s KnowledgeGroup Companies has granted in writing any license or other right to any third party with respect to the Company Intellectual Property or Licensed Intellectual Property. Neither the execution, delivery and performance of this Agreement or the Related Documents nor the consummation of any of the transactions contemplated hereby or thereby will alter or impair the Company Intellectual Property or Licensed Intellectual Property.
(f) Each of the Founders, the directors of each Group Company, current and former employee employed, and current and former consultant engaged, by each Group Company as of the Closing is under written obligation for the benefit of the Group Companies, to maintain in confidence all confidential and proprietary information acquired by them during the course of their employment and all rights and title to and ownership of all inventions made by them within the scope of their employment during such employment and for a reasonable period thereafter are vested in and remain with the Group Companies. Each Group Company Subsidiaries have has taken commercially reasonable measures to protect the secrecy, and confidentiality of all of their material trade secrets and any other material confidential information and, to the knowledge of the Company, there has been no unauthorized disclosure of any material data or information which, but for any such unauthorized disclosure, such Group Company and the Company Subsidiaries (and any confidential information would consider to be a material trade secret owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the such Group Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Share Purchase Agreement (Luokung Technology Corp.), Share Purchase Agreement (Momo Inc.)
Intellectual Property. (a) Within ten (10) Business Days following the date The Company has delivered or made available to Newco a complete and accurate list of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Rights that are Registered IP (“Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual PropertyIP”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the The Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights has no actual knowledge of any third party and the information, materials, facts or circumstances that would render any material Company has not received any written allegations to that effectRegistered IP invalid or unenforceable.
(c) To With respect to each item of Company Registered IP to which the Company’s KnowledgeCompany in its reasonable business discretion has determined to maintain: (i) all necessary registration, no third party maintenance and renewal fees have been paid, and all necessary documents and certificates have been filed with the relevant patent, copyright, trademark, domain registrars or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Company Registered IP; (ii) is currently misappropriatingin compliance with all formal legal requirements with respect thereto, infringing and (iii) is not subject to any overdue maintenance fees or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiarytaxes.
(d) Except as has not had, and would not reasonably be expected to have, individually The Company or in one of its Subsidiaries holds exclusive ownership of all material Company Intellectual Property Rights. To the aggregate, a Company Material Adverse Effectknowledge of the Company, the Company and its Subsidiaries own all right, title and interest in the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business Rights, free and clear of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))all Liens other than Permitted Liens.
(e) To the knowledge of the Company’s Knowledge, the development, manufacturing, marketing, sale, offer for sale, exportation, distribution, and/or use by the Company and the Company its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to Products does not infringe or misappropriate any Person other than pursuant to a written agreement restricting the disclosure and use Intellectual Property Right of such trade secrets or any other material confidential information by such third Person.
(f) The IT Assets Company and each of its Subsidiaries have acted in a reasonable and prudent manner with respect to the protection and preservation of the confidentiality of the Trade Secrets that are Company Intellectual Property Rights, and to the knowledge of the Company, there is no material unauthorized use, disclosure or misappropriation of any such Trade Secrets that are Company Intellectual Property Rights by any Person. In connection with the Company’s and its Subsidiaries’ license grants to third parties of any licenses to use any source code to any material Technology for any Company Product for which the Company and its Subsidiaries have determined to maintain as a Trade Secret, such arrangements contain customary contractual protections designed to appropriately limit the rights of such third party licensees and preserve the Company’s rights to the Trade Secrets embodied by such source code.
(g) To the knowledge of the Company, no Person (or any of such Person’s products or services or other operation of such Person’s business) is infringing upon or otherwise violating in any material respect any Company Intellectual Property Rights, and neither the Company nor any of its Subsidiaries have asserted or threatened in writing any claim against any Person alleging the same.
(h) There is not, and has not been during the three (3) years prior to the date hereof, any Legal Proceeding made, conducted or brought by a third Person that has been served upon or filed with respect to any alleged infringement or other violation by the Company or any of its Subsidiaries of the Intellectual Property Rights of such third Person.
(i) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including the Merger) will not, as a result of any Contract to which the Company or any of its Subsidiaries is a party, trigger (i) the Company or its Subsidiaries granting to any third party any rights or licenses to any Patents that are Company Intellectual Property Rights, or (ii) the Company or any of its Subsidiaries being bound by, or subject to, any non-competition, exclusivity or other material restriction on the operation or scope of their respective businesses that would reasonably be expected to give rise to a Company Material Adverse Effect.
(j) The Company and its Subsidiaries exercise ordinary and reasonable care in connection with the use of Public Software. The Company and its Subsidiaries are in operating order compliance in all material respects and are fulfilling the purposes for which they were acquiredwith all Public Software, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced except where any material errors and/or breakdowns, (iii) such noncompliance would not reasonably be expected to the Company’s Knowledge, do not contain Unauthorized Code, (iv) give rise to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the a Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedMaterial Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Barracuda Networks Inc), Merger Agreement (Riverbed Technology, Inc.)
Intellectual Property. (a) Within ten (10Section 3.17(a)(i) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of all Intellectual Property owned by the Company issued by, registered with, renewed by, or any Company Subsidiary that is the subject of an applicationa pending application before, certificate, filing, registration or other document issued by, filed with or recorded any Governmental Entity and owned by any Governmental Authority or member of the Company Group, including all such Intellectual Property consisting of domain name registrar names (the “Registered Intellectual Property”)) indicating for each such item, together with all material unregistered trademarksas applicable, the registration number and the applicable filing jurisdiction, and identifying the owner. To The consummation of the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective transactions contemplated by the filing Transaction Documents will not result in the loss of, or otherwise adversely affect, any ownership or, as applicable, use rights of all necessary filingsthe Company Group (as in effect prior to the Contribution, maintenance or the rights of the Company and renewals Connextions HCI following the Contribution) in any Owned Intellectual Property, or any of the Company Group’s rights (as in effect prior to the Contribution, or the rights of the Company and timely payment of requisite feesConnextions HCI following the Contribution) to use any other material Company Intellectual Property.
(b) To The Company and Connextions HCI exclusively own (beneficially, and of record where applicable) all right, title and interest in and to the Company’s KnowledgeOwned Intellectual Property owned by it, free and clear of all Liens (excluding Permitted Liens), and have the right to use all other Company Intellectual Property as necessary for the conduct of the business Business as currently conducted. No third party has been granted or retains any ownership rights in any Owned Intellectual Property owned by the Company or Connextions HCI. The Registered Intellectual Property is subsisting and enforceable, and, to the Knowledge of Seller, is valid and, except with respect to proceedings relating to the prosecution of Registered Intellectual Property before a Governmental Entity, is not subject to any outstanding Order or proceeding with a Governmental Entity adversely affecting, or that could adversely affect, the Company’s or Connextions HCI’s use thereof or rights thereto. There are no material royalties, fees, honoraria or other payments payable by any member of the Company and Group to any Person by reason of the ownership, development, modification, use, license, sublicense, sale, distribution or other disposition of the Owned Intellectual Property owned by the Company Subsidiaries as it is currently conducted Group, other than salaries and planned sales commissions paid to be conducted employees and sales agents in the Ordinary Course of Business.
(c) The conduct of the Business does not infringe, misappropriate or otherwise violate any the Intellectual Property rights of any third party and the Company since January 1, 2014, has not received any written allegations to that effect.
(c) To the Company’s Knowledgeinfringed, no third party is currently misappropriating, infringing misappropriated or otherwise violating any violated the Intellectual Property rights of any third party. Except with respect to proceedings relating to the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all prosecution of Registered Intellectual Property necessary to conduct the business before a Governmental Entity, there is no litigation, opposition, cancellation, Legal Proceeding, objection or claim pending, asserted or threatened in writing by or against any member of the Company and Group concerning the Company Subsidiaries as it is currently conducted; providedownership, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.validity,
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Teletech Holdings Inc)
Intellectual Property. (a) Within ten (10Schedule 3.10(a) Business Days following the date of this Agreementcontains a true, the Company shall provide Parent with a correct and complete list of all of the following items included in the Owned Intellectual Property owned by as of the Company or any Company Subsidiary that is date hereof: (i) all registered trademarks and pending trademark applications; (ii) all registered copyrights; (iii) all domain names; and (iv) all patents and patent applications, including, as appropriate, for each item identified pursuant to (i) - (iv) above, the subject of an application, certificate, filingowner, registration or other document issued byand application dates and numbers, filed with or recorded by any Governmental Authority or domain name registrar (and the jurisdiction. Collectively, the items listed on Schedule 3.10(a) represent the “Registered Company Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To The Licensed Intellectual Property and the Company’s KnowledgeOwned Intellectual Property together constitute all the Intellectual Property necessary to, or used or held for use in, the conduct of the business of the Company and Group Companies as presently conducted. There exist no material restrictions on the Company Subsidiaries as it is currently conducted and planned to be conducted does disclosure, use, license or transfer of the Owned Intellectual Property. The consummation of the transactions contemplated by this Agreement will not infringealter, misappropriate encumber, impair or otherwise violate extinguish any Owned Intellectual Property rights or, to the Knowledge of the Company, any third party and the Company has not received any written allegations to that effectLicensed Intellectual Property.
(c) To Except as set forth on Schedule 3.10(c), (i) the Group Companies are the sole and exclusive owners of all Owned Intellectual Property and possess all right, title and interest in and to all Owned Intellectual Property free and clear of all Liens (other than Permitted Liens); (ii) there are no judgments finding any of the Owned Intellectual Property or, to the Knowledge of the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any the Licensed Intellectual Property to be invalid or unenforceable in whole or in part, and, to the Knowledge of the Company, all such Owned Intellectual Property and Licensed Intellectual Property is valid and enforceable; (iii) there are no proceedings pending or, to the Knowledge of the Company, threatened, in writing, that challenge the validity, use, ownership, or enforceability of the Owned Intellectual Property and/or seek to deny or restrict the rights of any Group Company in any of the Owned Intellectual Property or, to the Knowledge of the Company, the Licensed Intellectual Property; (iv) the Group Companies have taken commercially reasonable actions to maintain and protect any material Owned Intellectual Property; (v) the maintenance fees necessary to maintain the Company Intellectual Property and any and all software (including commercial “off the shelf” software) licensed to the Group Companies through the Closing Date have been paid; and (vi) all of the past and current employees and independent contractors of the Group Companies who have participated or are currently participating in the creation of any material Owned Intellectual Property have executed agreements with the applicable Group Company, whereby such employees and independent contractors presently assign to the applicable Group Company Subsidiaryall right, title and interest they may have in such material Owned Intellectual Property.
(d) Except as has not hadset forth on Schedule 3.10(c): (i) neither the use of any Intellectual Property as currently used by the Group Companies in the conduct of their business, and nor the conduct of their business as presently conducted, infringes, misappropriates or otherwise violates the rights of any Person in any Intellectual Property in a manner that would not reasonably be expected to havebe material to the Group Companies, individually taken as a whole, (ii) no Group Company has received any written notice from any third party, since January 1, 2016, alleging any of the same and/or offering to license any Intellectual Property of such third party and (iii) there is no Action pending against, or, to the Knowledge of the Company, threatened, in writing, against any Group Company alleging that the use of the Owned Intellectual Property or in the aggregateLicensed Intellectual Property or any services provided, a processes used or products manufactured, used, imported, offered for sale or sold by any Group Company Material Adverse Effectdo or may conflict with, the Company and the Company Subsidiaries own misappropriate, infringe or otherwise violate any Intellectual Property of any third party.
(e) Except as set forth on Schedule 3.10(e): (i) there are licensed to useno Actions currently pending or threatened, or otherwise possess valid rights to usethat have been brought, all Intellectual Property necessary to conduct the business of the since January 1, 2016, by any Group Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as against any representation or warranty with respect to Person alleging infringement, misappropriation, or violation of any Owned Intellectual Property rights Property; and (which is addressed in Section 4.21(bii) and Section 4.21(c)).
(e) To to the Knowledge of the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any no Person to whom the Company has, since January 1, 2016, infringed, misappropriated or otherwise violated, or is currently infringing upon, misappropriating, or otherwise violating, any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets Owned Intellectual Property or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonLicensed Intellectual Property.
(f) Each Group Company has taken commercially reasonable measures in accordance with normal industry practice to maintain the confidentiality of all Owned Intellectual Property that is material to the business or operation of any Group Company and the value of which to such Group Company is contingent upon maintaining the confidentiality thereof. None of the Owned Intellectual Property that is material to the business or operation of any Group Company and the value of which to such Group Company is contingent upon maintaining the confidentiality thereof, has been disclosed other than to employees, representatives, and agents of a Group Company, or third parties engaged in business with a Group Company, all of whom are bound by confidentiality agreements or policies.
(g) Each Group Company has commercially reasonable rules, policies and procedures in place to protect Personal Data in such Group Company’s possession or control from unauthorized access by third persons. Each Group Company has, since January 1, 2016, complied, in all material respects, with all such rules, policies, procedures and all applicable Laws with respect to the protection, storage, collection, retention, use, disclosure and other processing of Personal Data (including the European Union Data Protection Directive, 95/46/EC, as updated from time to time). To the Knowledge of the Company, since January 1, 2016, no person or entity has made any illegal or unauthorized use of Personal Data that was collected by or on behalf of the Group Companies and is in the possession or control of the Group Companies. To the Knowledge of the Company, no Group Company is currently under any investigation by any Governmental Entity regarding its protection, storage, use, and disclosure of Personal Data.
(h) It is the practice of the Group Companies to scan with commercially available virus scan software the Company Software that is capable of being scanned for viruses and (i) to the Knowledge of the Company, none of the Company Software that is material to the conduct of the business of the Group Companies as presently conducted contains any worm, bomb, backdoor, clock, timer, or other disabling device code, design or routine which can cause software to be erased, inoperable, or otherwise incapable of being used, either automatically or upon command by any Person and (ii) all software vendor audits requested prior to the date hereof have been satisfied by verifying, with respect to the software that is the subject of such audit, that (A) the Group Companies have valid licenses to use all copies of such software that are necessary to, or used or held for use in, the conduct of the business of the Group Companies as presently conducted and/or (B) the Group Companies have paid all amounts owed (including any associated penalties) arising from their use of such software.
(i) The IT Assets (i) are in operating order in all material respects operate and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, in a manner that permits the Group Companies to conduct their business as currently conducted. The Group Companies have taken commercially reasonable actions to protect the confidentiality, integrity, operation and security of the IT Assets (and all information technology operations necessary and transactions stored or contained therein or transmitted thereby) against any unauthorized use, access, interruption, malfunction, modification or corruption. Except as set forth on Schedule 3.10(i), to conduct the businesses Knowledge of the Company and the Company Subsidiaries as they are currently conductedCompany, there has been no unauthorized use, access, interruption, modification, corruption or material malfunction of any IT Assets (or any information or transactions stored or contained therein or transmitted thereby).
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Charles River Laboratories International Inc)
Intellectual Property. The Company and its subsidiaries own, or have rights to use the inventions, patent applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described in the SEC Documents as being owned or licensed by them and which are used in and necessary for the conduct of their respective businesses as currently conducted or as currently proposed to be conducted (acollectively, “Intellectual Property”) Within ten (10) Business Days following and, to the date of this AgreementCompany’s knowledge, the Company shall provide Parent with a correct conduct of their respective businesses does not and complete list will not infringe or misappropriate in any material respect any such rights of all others. The Intellectual Property owned by the Company has not been adjudged by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, and the Company is unaware of any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by facts which would form a reasonable basis for any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarkssuch adjudication. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by knowledge: (i) except as otherwise disclosed in the filing of all necessary filings, maintenance SEC Documents and renewals and timely payment of requisite fees.
with respect to LX9211 (b) To the Company’s Knowledge, the conduct of the business of to which the Company and the Company Subsidiaries as it is currently conducted and planned has acquired an exclusive license), there are no third parties who have ownership, royalty, or exclusive license rights to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property owned by the Company, except for customary reversionary rights of any third third-party and the Company has not received any written allegations licensors with respect to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of that is disclosed in the SEC Documents as licensed to the Company or any Company Subsidiary.
one or more of its subsidiaries; and (dii) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it there is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation no material infringement by third parties of any Intellectual Property rights (which owned by the Company. There is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To no pending or, to the Company’s Knowledgeknowledge, threatened action, suit, proceeding or claim by others: (A) challenging the Company and Company’s rights in or to any Intellectual Property licensed to the Company Subsidiaries have taken commercially reasonable measures to protect Company; (B) challenging the confidentiality validity, enforceability or scope of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information Intellectual Property owned by any Person to whom the Company; or (C) asserting that the Company or any of its subsidiaries infringes or otherwise violates, or would, upon the commercialization of any product or service described in the SEC Documents as under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret or other intellectual rights of others. The Company and its subsidiaries have materially complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company Subsidiaries has a confidentiality obligation)or any subsidiary, and all such agreements are, to the Company’s knowledge, in full force and effect. To the Company’s Knowledgeknowledge, there are no material defects in any of the patents or patent applications included in the Intellectual Property. The Company and its subsidiaries have taken reasonable steps to protect, maintain and safeguard Intellectual Property owned by the Company, including the execution of appropriate nondisclosure, confidentiality agreements and invention assignment agreements and invention assignments with their employees, and, to the Company’s knowledge, no such trade secrets employee of the Company is in or other material confidential information has been disclosed in violation of any term of any such agreement. The duty of candor and good faith as required by the United States Patent and Trademark Office during the prosecution of the United States patents and patent applications included in the Intellectual Property owned by the Company have been materially complied with; and in all foreign offices having similar requirements, all such requirements have been materially complied with. The product candidates described in the SEC Documents as under development by the Company or any subsidiary fall within the scope of the claims of one or more patents or patent applications owned by, or exclusively licensed to, the Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personsubsidiary.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Lexicon Pharmaceuticals, Inc.), Preferred Stock Purchase Agreement
Intellectual Property. (a) Within ten (10Section 3.17(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct true and complete list of all (i) software owned by or licensed to any of the Pershing Companies, (ii) all patents and patent applications, (iii) trademark registrations and applications, (iv) copyright registrations and applications and (v) unregistered trademarks, in each case, included in the Company Intellectual Property and, in the case of (i), (iii), (iv) and (v), material to the operation of the Business.
(b) Except as set forth in Section 3.17(b) of the Disclosure Schedule, (i) to the knowledge of the Seller, the conduct of the Business as currently conducted does not and will not, upon Closing, infringe, misappropriate, violate or conflict with the Intellectual Property of any third party (including the Seller and its Affiliates), and no written claim has been asserted to the Seller or the Pershing Companies that the conduct of the Business as currently conducted infringes or misappropriates the Intellectual Property of any third party; (ii) to the knowledge of Seller, no third party is infringing, misappropriating or violating any Company Intellectual Property in any material respect; (iii) with respect to each item of Company Intellectual Property owned by the Pershing Companies and material to the Business, each of the Pershing Companies, as applicable, is the owner of the entire unencumbered (other than licenses thereof) right, title and interest in and to such Intellectual Property and is entitled to use such Intellectual Property in the continued operation of its business; (iv) with respect to each item of Company Intellectual Property licensed to each of the Pershing Companies as licensee and material to the Business as currently conducted, each of the Pershing Companies has the right to use such Intellectual Property in the continued operation of its business as currently conducted and as conducted as of Closing in accordance with the terms of the Company IP License governing such Intellectual Property without the need to pay any additional consideration; (v) to the knowledge of Seller, the Company Intellectual Property is valid and enforceable and has not been adjudged invalid or unenforceable in whole or part; (vi) in connection with any registered or applied for Company Intellectual Property owned by the Company or any Company Subsidiary that is and material to the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct operation of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringeBusiness, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received taken commercially reasonable efforts to protect its validity, including, without limitation, the payment of all renewal fees and recordations of all assignments, transfers, name changes, and the like; and (vii) to the knowledge of the Seller, no current or former Pershing Company Employee or contractor is or was party to any written allegations valid agreement (directed to non-disclosure, non-compete, exclusive services obligations or the like) that effectrestricts, restricted, forbids or forbade at any time during such Employee or contractor’s employment or engagement with the Pershing Companies the activities or performance of duties of such Employee or contractor for or on behalf of the Pershing Companies in connection with the invention or creation of Intellectual Property for or on behalf of the Pershing Companies.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights Except as set forth on Section 3.17(c) of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectDisclosure Schedule, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries Pershing Companies have taken commercially reasonable measures to protect the secrecy, confidentiality and value of all trade secrets Trade Secrets used in and any other material confidential information to the operation of the Business (collectively, “Company Trade Secrets”) (including without limitation entering into appropriate confidentiality agreements with officers, directors, employees, and other Persons with access to the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligationTrade Secrets). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Transaction Agreement (Credit Suisse First Boston Usa Inc), Transaction Agreement (Credit Suisse Group)
Intellectual Property. The Company owns or possesses adequate rights or licenses to the inventions, know-how, patents, patent rights, copyrights, trademarks, trade names, licenses, approvals, governmental authorizations, trade secrets confidential information and other intellectual property rights necessary to conduct the business now operated by it and presently contemplated to be operated by it (a) Within ten (10) Business Days following the date of this Agreementcollectively, the Company shall provide Parent with a correct and complete list of all “Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual PropertyRights”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing free and clear of all necessary filingsliens, maintenance security interests, charges, encumbrances, equities and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledgeother adverse claims, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights except as disclosed in the SEC Filings and except as to any such claims that effect.
(c) To would not have a Material Adverse Effect. Except as set forth on Schedule 4.15 hereto, none of the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights Rights have expired or terminated, or are expected to expire or terminate within three years from the date of the Company this Agreement, except where such expirations or any Company Subsidiary.
(d) Except as has not had, and termination would not reasonably be expected to haveresult, either individually or in the aggregate, in a Company Material Adverse Effect. To the knowledge of the Company, the Company’s patents and other Intellectual Property Rights and the present activities of the Company do not infringe any patent, copyright, trademark, trade name or other proprietary rights of any third party where such infringement may cause a Material Adverse Effect on the Company, and there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against, the Company regarding its Intellectual Property Rights, and the Company Subsidiaries own is unaware of any facts or are licensed circumstances which might give rise to use, or otherwise possess valid rights to use, all any of the foregoing. The Company has no knowledge of the material infringement of its Intellectual Property necessary Rights by third parties and has no reason to conduct the business believe that any of the Company its Intellectual Property Rights is unenforceable, and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation unaware of any Intellectual Property rights (facts or circumstances which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To might give rise to any of the Company’s Knowledge, the foregoing. The Company and the Company Subsidiaries have has taken commercially reasonable security measures to protect the secrecy, confidentiality and value of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personits intellectual properties.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Purchase Agreement (Hearusa Inc), Purchase Agreement (Hearusa Inc)
Intellectual Property. (a) Within ten (10) Business Days following Company owns or holds all of the date of this Agreement, rights to use all intellectual property rights that are used in the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct operation of the business of Company, including, without limitation, all patents and applications therefor, know how, unpatented inventions, trade secrets, product formulas, packaging styles and methods, business and marketing plans, ideas for products or production developed or used by the Company, copyrights and applications therefor, trademarks and applications therefor, service marks and applications therefor, trade names and applications therefor, and all names, logos, and slogans used by Company and (collectively "Intellectual Property"), including the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights set forth on Schedule 3.1(v). Schedule 3.1(v) hereto sets forth a true, complete, and correct list of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any all material Intellectual Property rights of the Company owned or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned used by any Person to whom the Company or any of its subsidiaries. Except as set forth in Schedule 3.1(v), Company owns all rights with respect to, and has good and marketable title to, all of the trademarks and formulas that are used in the Business. Except as set forth in Schedule 3.1(v), Company Subsidiaries has a confidentiality obligation)is not, and following the Closing, neither Buyer nor Company will be, obligated to pay any royalty or other payment with respect to any of such formulas. To the knowledge of Shareholders, none of the matters covered by the Intellectual Property, nor any of the products or services sold or provided by Company’s Knowledge, nor any of the processes used or the business practices followed by Company, infringes or has infringed upon any trademark, trade name, trade secret, fictitious name, service mark, xxtent, or copyright owned by any person or entity (or any application with respect thereto), or constitutes unfair competition. Except as set forth in Schedule 3.1(v), Company is not, and following the Closing neither Buyer nor Company will be, obligated to pay any royalty or other payment with respect to any of the Intellectual Property. To the knowledge of Shareholders, except as disclosed in Schedule 3.1(v), no such trade secrets person or other material confidential information has been disclosed by the Company entity is producing, providing, selling, or using products or services that would constitute an infringement of any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedIntellectual Property.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Styling Technology Corp), Stock Purchase Agreement (Uk Abba Products Inc)
Intellectual Property. Section 3.17 of the Company Disclosure Schedule sets forth, but only to the extent material to the Company and its Subsidiaries taken as a whole, all issued or pending patents, registered or pending trademarks, trade names, service marks, registered copyrights and internet domain names owned or applied for by the Company or any of its Subsidiaries. Except as would not have a Company Material Adverse Effect: (ai) Within ten except as set forth in Section 3.17 of the Company Disclosure Letter either the Company or a Subsidiary of the Company has the exclusive right, title and interest free and clear of any Liens to all material trademarks, trade names, service marks, service names, mxxx registrations, logos, assumed names, registered and unregistered copyrights, patents or applications and registrations (10) Business Days following the date of this Agreementcollectively, the Company shall provide Parent with a correct and complete list of all “Intellectual Property Property”) owned or claimed to be owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar its Subsidiaries (the “Registered Company Intellectual Property”), together with all material unregistered trademarksand has rights under valid and enforceable license agreements to use Intellectual Property licensed from third parties (“Licensed Intellectual Property”), and (ii) to the Knowledge of the Company, the operation of the Company’s and its Subsidiaries’ businesses as currently conducted do not infringe, constitute an unauthorized use of or misappropriate any Intellectual Property of any third Person. To the Knowledge of the Company’s Knowledge, all material Registered the Company Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance is valid and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business enforceable. Except as set forth in Section 3.17 of the Company and Disclosure Letter, (i) in the Company Subsidiaries as it is currently conducted and planned last two years there have been no written claims or legal proceedings or, to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights the Knowledge of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned threatened claims by any Person to whom person alleging infringement by the Company or any of the Company its Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or with respect to any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets Intellectual Property or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, Licensed Intellectual Property; (ii) have not, in the past three (3) years, experienced last two years neither the Company nor any material errors and/or breakdowns, of its Subsidiaries has made any written claim to a third Person asserting a violation or infringement by any third Person of its rights to or in connection with the Company Intellectual Property or the Licensed Intellectual Property; (iii) to the Knowledge of the Company’s Knowledge, do not contain Unauthorized Code, no person is infringing any material Company Intellectual Property; and (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses none of the Company and or its Subsidiaries is a party to any existing written agreement pursuant to which the Company Subsidiaries as they are currently conductedor any Subsidiary has licensed to any unaffiliated third Person the use of any trademark listed on Schedule 3.17 of the Company Disclosure Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Intellectual Property. (a) Within ten (10Section 4.15(a) Business Days following of the Company Disclosure Letter lists, as of the date of this Agreement, (i) all Company Registered Intellectual Property Rights, including the applicable number, registration number or application number, date of filing and issuance, the jurisdiction in which each item of Company Registered Intellectual Property Rights has been issued, filed, or recorded, the present status thereof (if other than “issued” or “pending”), and the date(s) any future action (including payment of any fees) needs be taken to maintain such rights within 12 months of the date hereof, (ii) all material common law Trademarks used by the Company shall provide Parent with or any of its Subsidiaries, including a correct and complete list of applicable jurisdictions, (iii) all Domain Names used by the Company, including the corresponding registrant and any future renewal dates within 12 months of the date hereof applicable thereto, and (iv) any claims, suits, actions, or proceedings pending with respect to any Company Registered Intellectual Property Rights, including a description of the parties, the filing or docket number if applicable, the venue, and the present status thereof. To the Knowledge of the Company each material item of Company Registered Intellectual Property Rights is valid and subsisting as of the date of this Agreement, except as would not have, individually or in the aggregate, a Company Material Adverse Effect and to the Knowledge of the Company all necessary registration, maintenance and renewal fees currently due have been made, and all necessary documents, recordations and certificates have been filed, for the purpose of maintaining such Company Registered Intellectual Property Rights.
(b) Section 4.15(b) of the Company Disclosure Letter lists as of the date hereof all material Contracts currently in effect to which the Company or any of its Subsidiaries is a party under which any third Person has granted to the Company or any of its Subsidiaries, or the Company or any of its Subsidiaries has granted to any third Person, any license to Intellectual Property Rights (other than Contracts entered into in the ordinary course of business: (i) pursuant to one of the Company’s standard Contracts (or in a form substantially similar to, or with provisions with substantially similar legal effect as the provisions of, one of such forms) a copy of which has been provided to Parent; (ii) concerning Intellectual Property Rights that are available on commercially reasonable terms to the general public and which have a value of less than $100,000 over the life of the Contract; (iii) which are (A) study agreements with clinical trial sites, (B) non-disclosure agreements, or (C) customary (1) Contracts with contractors or vendors providing products or services to the Company or any of its Subsidiaries or (2) material transfer Contracts; or (iv) which are not material to the operation of the business of any of the Company or its Subsidiaries) (each, a “Company IP Contract”).
(c) Except as indicated in Section 4.15(a) to the Company Disclosure Letter, the Company or its Subsidiaries own, and has good and exclusive title to, the Company Intellectual Property Rights which are owned or purported to be owned by the Company or any Company Subsidiary that is the subject of an applicationits Subsidiaries, certificatefree and clear of Liens other than (i) Permitted Liens, filing(ii) encumbrances, registration licenses, restrictions or other document issued obligations arising under any of the Company IP Contracts, and (iii) Liens that would not have, individually or in the aggregate, a Company Material Adverse Effect. Except as indicated in Section 4.15(c) to the Company Disclosure Letter, to the Knowledge of the Company, as of the date hereof, the Company or its Subsidiaries owns or has sufficient rights to use all Intellectual Property Rights used by, filed or contemplated to be used by the Company or its Subsidiaries in, and material to, the conduct of the Company’s or its Subsidiaries’ business as currently conducted or as currently contemplated by the Company or its Subsidiaries to be conducted.
(d) The Company and each of its Subsidiaries take reasonable steps to maintain the secrecy of Confidential Information from which the Company or any of its Subsidiaries derive independent economic value, actual or potential, from the Confidential Information not being generally known, except where any failure would not have, individually or in the aggregate, a Company Material Adverse Effect. The Company and each of its Subsidiaries have policies requiring each employee and individual independent contractor who is involved in the development of material Intellectual Property to execute one or more agreements with provisions relating to the protection of the Company’s Confidential Information and assigning to the Company or recorded a Subsidiary the ownership of material Intellectual Property and Intellectual Property Rights developed within the scope of the individual’s employment or independent contractor relationship with the Company or any of its Subsidiaries, and all of the Company’s and each Subsidiary’s past and present employees and independent contractors involved in the development of material Intellectual Property have executed such agreement(s). To the Knowledge of the Company, no officer or employee of the Company or any of its Subsidiaries is subject to any agreement with any other Person which requires such officer or employee to assign any interest in any (i) Company Intellectual Property Rights or (ii) Intellectual Property conceived and/or reduced to practice by such officer or such employee in the course of their employment at the Company or any Governmental Authority of its Subsidiaries, to any Person other than the Company or domain name registrar any of its Subsidiaries.
(e) (i) The conduct of the “Registered Company’s or its Subsidiaries’ business does not materially infringe upon, misappropriate or otherwise violate the Intellectual Property”)Property Rights (other than Patent Rights) of a third Person, together with all material unregistered trademarksor violate any rights to privacy or publicity; and (ii) to the Knowledge of the Company, the conduct of the Company’s or its Subsidiaries’ business does not materially infringe upon, misappropriate or otherwise violate the Patent Rights of a third Person, or constitute unfair competition or trade practices under the Laws of any jurisdiction.
(f) Except as set forth on Section 4.15(f) of the Company Disclosure Letter, since January 1, 2010 through the date hereof, the Company and each of its Subsidiaries has not received written notice of a claim that the conduct of the Company’s or its Subsidiaries’ business infringes upon, misappropriates, or otherwise violates the Intellectual Property Rights of a third Person, violates any rights to privacy or publicity or constitutes unfair competition or trade practices under the Laws of any jurisdiction (nor does the Company have Knowledge of any basis for such claim) or any notice that could be reasonably interpreted as such. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filingsno Person is infringing, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing misappropriating or otherwise violating any Company Intellectual Property Rights. Since January 1, 2010 through the date hereof, neither the Company nor any of its Subsidiaries has asserted or threatened any claim against any third Person alleging any infringement, misappropriation or violation of any Company Intellectual Property Rights (nor does the Company have Knowledge of any basis for such claim). As of the date hereof, the Company and its Subsidiaries are not subject to any Order or other consent, settlement, judgment or similar litigation-related or adversarial-related obligation that materially restricts or materially impairs the use of any material Company Intellectual Property Rights.
(g) Except as set forth in Section 4.15(g) of the Company Disclosure Letter, the execution and delivery of this Agreement will not result in (i) Parent, the Company or its Subsidiaries granting to any third party any material incremental rights or licenses to any Intellectual Property Rights owned by, or licensed to, any of them, (ii) any Person having the right to terminate any Company IP Contract, (iii) Parent, the Company or its Subsidiaries being bound by, or subject to, any incremental non-compete or other incremental material restriction on the operation or scope of their respective businesses, (iv) Parent, the Company or its Subsidiaries being obligated to pay any incremental royalties, fees or other material amounts, or offer any incremental discounts, to any third Person, or (v) the imposition of any Lien on any Company Intellectual Property Rights other than Permitted Liens and encumbrances, licenses, restrictions or other obligations arising under any of the Company IP Contracts. As used in this Section 4.15(g), an “incremental” right, non-compete, restriction, royalty or discount refers to a right, non-compete, restriction, royalty or discount, as applicable, in excess of the rights, non-competes, restrictions, royalties or discounts payable that would have been required to be offered or granted, as applicable, had the parties not executed or delivered this Agreement or consummated the transactions contemplated hereby.
(h) Except as set forth in Section 4.15(h) of the Company Disclosure Letter, (i) no Governmental Authority, university, college, other educational institution, or research center involved in the research and development of Intellectual Property (collectively, “Institutions”) provided facilities or funding for the development of any material Company Intellectual Property Rights, (ii) no Institutions have any rights in or with respect to any developments of or to any Intellectual Property made by any current or former employee, consultant or contractor of the Company or any of its Subsidiaries that relate in any manner to material Company SubsidiaryIntellectual Property Rights or the Company Products, and, (iii) neither the Company nor any of its Subsidiaries has made any submission or suggestion to, nor is subject to any agreement with, any standards body or other entity that would obligate the Company, any of its Subsidiaries, Parent or Acquisition Sub to grant any licenses to any Intellectual Property Rights owned by, or licensed to, any of them or which otherwise impairs or limits its control of any Company Intellectual Property Rights, in each case under any Material Contract.
(di) Except None of the Company or any of its Subsidiaries has: (1) incorporated Open Source materials into, or combined Open Source materials with, any of the Company Products, (2) distributed Open Source materials in conjunction with or for use with any of the Company Products, or (3) used Copyleft materials in a manner that requires (A) the Company Products or any portion thereof to be subject to any Copyleft License, or (B) except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, any other Company Intellectual Property Rights to be subject to any Copyleft License. For purposes of this provision, “Open Source Licenses” shall mean any license meeting the Company and Open Source Definition (as promulgated by the Company Subsidiaries own Open Source Initiative) or are licensed to the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license, including any license approved by the Open Source Initiative, or any Creative Commons License. For the avoidance of doubt, Open Source Licenses include Copyleft Licenses. For purposes of this provision, “Copyleft Licenses” shall mean any license that requires, as a condition of use, modification or otherwise possess valid rights to usedistribution of Copyleft materials, all that such Copyleft materials, or other software or other Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; providedincorporated into, howeverderived from, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute used or be deemed or construed as any representation or warranty distributed with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets Copyleft materials: (i) are in operating order the case of software, be made available or distributed in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errorsSource Code form, (ii) have not, in be licensed for the past three (3) years, experienced any material errors and/or breakdownspurpose of preparing derivative works, (iii) be licensed under terms that allow the Company Products (or portions thereof or interfaces therefor) or Company Intellectual Property Rights to the Company’s Knowledgebe reverse engineered, do not contain Unauthorized Codereverse assembled or disassembled (other than by operation of Law), or (iv) to be redistributable. Copyleft Licenses include the Company’s KnowledgeGNU General Public License, have not experienced any material security breachesthe GNU Lesser General Public License, the Mozilla Public License, the Common Development and (v) are considered by Distribution License, the Company to effectively perform, in Eclipse Public License and all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedCreative Commons “sharealike” licenses.
Appears in 2 contracts
Samples: Merger Agreement (Otsuka Holdings Co., Ltd.), Merger Agreement (Astex Pharmaceuticals, Inc)
Intellectual Property. (a) Within ten (10Schedule 3.12(a) Business Days following of the date of this Agreement, the Company shall provide Parent with a correct Seller Disclosure Letter sets forth an accurate and complete list as of the date hereof of all registered and applications for registration of Intellectual Property owned by or filed in the Company or any Company Subsidiary that is name of the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar Conveyed Companies (the “Registered Intellectual Property”), together specifying for each item (as applicable) (A) the owner(s) of the item, (B) the jurisdictions in which the item is issued or registered or in which an application for issuance or registration has been filed, and (C) the issuance, registration or application numbers and dates. The Company Owned IP is subsisting, and, to the Knowledge of Seller, valid and enforceable. All necessary registration, maintenance and renewal fees in connection with all material unregistered trademarks. To the Company’s Knowledge, all material any Registered Intellectual Property has due prior to the Closing have been maintained effective by the filing of paid and all necessary filingsdocuments and certificates in connection with the foregoing have been filed with the relevant authorities in the United States or foreign jurisdictions, maintenance and renewals and timely payment as the case may be, for the purposes of requisite feesmaintaining the foregoing.
(b) To Except as set forth on Schedule 3.12(a) of the Seller Disclosure Letter, the applicable Conveyed Company solely and exclusively owns all right, title, and interest in and to the Company Owned IP, and owns or has the right to use pursuant to a valid and enforceable license or an Ancillary Agreement all other Intellectual Property or Technology used in or necessary for the operation of the Business, in each case free and clear of all Liens other than Permitted Liens.
(c) There is no Action pending or, to the Knowledge of Seller, threatened in writing, which challenges of the validity or enforceability of any Company Owned IP, or any Conveyed Company’s Knowledge, the ownership interest therein. The conduct of the business of the Company and the Company Subsidiaries Business as it is currently conducted and planned to be presently conducted does not infringe, misappropriate misappropriate, misuse or otherwise violate violate, and since September 29, 2017 has not infringed or misappropriated, misused, or violated, in each case, in any material respect, any Intellectual Property rights or Technology of any third party and the Company has not received any written allegations to that effect.
(c) Person. To the Company’s KnowledgeKnowledge of Seller, no third party is currently misappropriatingPerson has infringed, infringing misappropriated, misused, or otherwise violating any Intellectual Property rights of the Company or violated any Company SubsidiaryOwned IP in any material respect.
(d) Except as Each Person who has not hadparticipated in the authorship, conception, creation, reduction to practice, or development of any material Intellectual Property or Technology for any of the Conveyed Companies (including any material Company Owned IP) has executed and delivered to the applicable Conveyed Company a valid and enforceable Contract providing for (i) the non-disclosure by such Person of all trade secrets or other confidential information of the Conveyed Companies and (ii) the assignment by such Person (by way of a present grant of assignment) to the applicable Conveyed Company of all right, title, and would not reasonably be expected interest in and to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all such material Intellectual Property necessary in and to conduct such material Technology. To the business Knowledge of the Company and the Company Subsidiaries as it Seller, no Person is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation breach of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))such Contract.
(e) To Since September 29, 2017, there have been no material failures, breakdowns, or continued substandard performance of any Company Systems which have caused substantial disruption or interruption in or to the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information use of the Company and Systems or the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any operation of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonBusiness.
(f) The IT Assets Conveyed Companies maintain policies, procedures, and rules regarding data privacy, protection, and security. The Conveyed Companies and the conduct of the Business is in material compliance with, and since September 29, 2017 has been in material compliance with, all Data Security Requirements. The Conveyed Companies have not received any complaints or demands from any Person with respect to any, and there have been no material (i) are in operating order in all material respects and are fulfilling incidents of data security breaches or intrusions or unauthorized access or use of any of the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errorsCompany Systems, (ii) have notunauthorized access to or collection, use, processing, or disclosure of any Conveyed Company’s trade secrets or other confidential information (including any personally identifiable information).
(g) None of the Conveyed Companies has used or distributed any software that is licensed under an “open source”, “copyleft” or analogous license (including any license approved by the Open Source Initiative and listed at xxxx://xxx.xxxxxxxxxx.xxx/licenses, GPL, AGPL or other open source software license) in a manner that has or would (i) require any public distribution of any software that the past three Conveyed Companies desired to maintain as confidential, (3ii) yearscreate obligations for any Conveyed Company to grant, experienced or purport to grant, to any material errors and/or breakdownsthird party any rights or immunities under any Intellectual Property or Technology owned by any Conveyed Company (including any patent non-asserts or patent licenses) in or to such software, or (iii) to the impose any present economic limitations on any Conveyed Company’s Knowledge, do not contain Unauthorized Code, commercial exploitation thereof.
(ivh) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses None of the Company Owned IP was (in whole or in part) authored, creation, conceived, developed, or reduced to practice with any personnel, funds, facilities, Intellectual Property, Technology, or other resources from any Government Authority, university, college, or other educational institution that retains any rights in or to such Company Owned IP (each, a “Sponsor”), and no Person who was involved in, or who contributed to, the authorship, creation, conception, development, or reduction to practice of any Company Owned IP was employed by, under contract to, or performed services for any Sponsor during a period of time during which such Person was also performing services for the Conveyed Companies related to the Company Subsidiaries as they are currently conductedOwned IP. No Sponsor has any claim or right in or to any Company Owned IP.
Appears in 2 contracts
Samples: Stock Purchase Agreement (TE Connectivity Ltd.), Stock Purchase Agreement
Intellectual Property. 3.1 All Proprietary Information and all right, title and interest in and to any Company patents, patent rights, copyrights, trademark rights, mask work rights, trade secret rights, and all other intellectual and industrial property and proprietary rights that currently exist or may exist in the future anywhere in the world (acollectively, “Rights”) Within ten (10) Business Days following in connection therewith shall be the date sole property of this Agreement, the Company. I hereby assign to the Company shall provide Parent any Rights I may have or acquire in such Proprietary Information.
3.2 I acknowledge and agree that I have no expectation of privacy with a correct respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored company files, e-mail messages and complete list voice messages) and that my activity and any files or messages on or using any of all Intellectual Property those systems may be monitored at any time without notice. I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. All Company Materials shall be the sole property of the Company. I agree that during my independent contractor relationship with the Company, I will not remove any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of Materials from the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights premises of the Company or deliver any Company SubsidiaryMaterials to any person or entity outside the Company, except as I am required to do in connection with performing the duties of my engagement as an independent contractor. I recognize that the unauthorized taking of any Proprietary Information may be a crime under the Cal. Penal Code §499c or comparable laws of other states or the United States, and may also result in civil liability under Sections 3426.1 through 3426.11 of the California Civil Code, or comparable laws of other states. I further agree that, immediately upon the termination of my engagement as an independent contractor by me or by the Company for any reason, or for no reason, or during my engagement as an independent contractor if so requested by the Company, I will return all Company Materials, apparatus, equipment and other physical property, or any reproduction of such property, excepting only (a) my personal copies of records relating to my compensation; (b) my personal copies of any materials previously distributed generally to stockholders of the Company; and (c) my copy of this Independent Contractor Proprietary Information and Inventions Agreement (this “Agreement”).
3.3 I agree that all “Inventions” (dwhich term includes patentable or non-patentable inventions, original works of authorship, derivative works, trade secrets, trademarks, copyrights, service marks, mask works, discoveries, patents, technology, algorithms, computer software, application programming interfaces, protocols, formulas, compositions, ideas, designs, processes, techniques, know-how, data and all improvements, rights and claims related to the foregoing), made, conceived, reduced to practice or developed by me or on my behalf (in whole or in part, either alone or jointly with others) Except within the course and scope of my engagement as has not hadan independent contractor, shall be the sole property of the Company. I hereby assign, without further consideration, all such Inventions (“Company Inventions”) to the Company (free and clear of all liens and encumbrances), and would not reasonably the Company shall be expected to have, individually the sole owner of all Rights in connection therewith. I acknowledge that all original works of authorship which have been made and which are made by me (in whole or in part, either alone or jointly with others) within the aggregate, a Company Material Adverse Effect, course and scope of my work as an independent contractor for the Company and which are protectable by copyright are “works made for hire,” as defined in the United States Copyright Act (17 USCA, Section 101). I have not disclosed and will not disclose Inventions covered by this Section 3.3 to any person outside the Company, unless I am requested to do so by management personnel of the Company.
3.4 I have maintained and agree to maintain adequate and current written records on the development of all Company Inventions and have disclosed and agree to disclose promptly to the Company Subsidiaries own all Company Inventions and relevant records, which records will remain the sole property of the Company. I further agree that all information and records pertaining to any idea, process, trademark, service xxxx, invention, technology, computer program, original work or are licensed to useauthorship, design, formula, discovery, patent, or otherwise possess valid rights copyright that I do not believe to usebe a Company Invention, but is conceived, developed, or reduced to practice by me (in whole or in part, either alone or jointly with others) within the course and scope of my engagement as an independent contractor, shall be promptly disclosed to the Company (such disclosure to be received in confidence). The Company shall examine such information to determine if in fact the ideas, process, or invention, etc., constitutes a Company Invention and is therefore subject to assignment under Section 3.3.
3.5 I agree to perform, during and after my engagement as an independent contractor, all Intellectual Property acts deemed necessary or desirable by the Company to permit and assist it, at the Company’s expense (which shall include separate reasonable compensation to me for such actions I may be requested to take after the termination of my engagement as an independent contractor), in evidencing, perfecting, recording, obtaining, maintaining, defending and enforcing Rights and/or my assignment with respect to Company Inventions in any and all countries. Such acts may include, without limitation, execution of documents and assistance or cooperation in legal proceedings. Should the Company be unable to secure my signature on any document necessary to conduct the business of apply for, prosecute, obtain, enforce or defend any Rights relating to any assigned Invention, whether due to my mental or physical incapacity or any other cause, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents, as my agents and attorneys-in-fact, with full power of substitution, to act for and in my behalf and instead of me, to execute and file any documents and to do all other lawfully permitted acts to further the Company Subsidiaries above purposes with the same legal force and effect as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))if executed by me.
3.6 Any assignment of copyright hereunder (eand any ownership of a copyright as a work made for hire) To the Company’s Knowledgeincludes all rights of paternity, the Company integrity, disclosure and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets withdrawal and any other material confidential information of the Company and the Company Subsidiaries rights that may be known as or referred to as “moral rights” (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligationcollectively, “Moral Rights”). To the extent such Moral Rights cannot be assigned under applicable law and to the extent the following is allowed by the laws in the various countries where Moral Rights exist, I hereby waive such Moral Rights and consent to any action of the Company that would violate such Moral Rights in the absence of such waiver and consent. I will confirm any such waivers and consents from time to time as reasonably requested by the Company’s Knowledge.
3.7 I agree that I will not incorporate in any way, no such trade secrets or permit to be incorporated in any way, any Inventions made, conceived, reduced to practice or developed by me (in whole or in part, either alone or jointly with others) either: (a) prior to or (b) outside the course and scope of my engagement as an independent contractor for the Company (“Prior Inventions”). Notwithstanding the foregoing, I hereby grant the Company a royalty-free, nonexclusive, perpetual, irrevocable, transferable, worldwide license (with rights to sublicense through multiple tiers of sublicense) to practice all Rights relating to any Prior Inventions (or other material confidential information has been disclosed by the Inventions that are not assigned or assignable to Company hereunder) that become incorporated in any way, or I permit to be incorporated in any way, in any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets Inventions or any other material confidential information by such PersonCompany technology or products.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Independent Contractor Proprietary Information and Inventions Agreement (Naturade Inc), Independent Contractor Proprietary Information and Inventions Agreement (Naturade Inc)
Intellectual Property. (a) Within ten (10i) Business Days following The Company and its Subsidiaries own or have a valid license to use all Company Intellectual Property (as defined below), free and clear of all Liens, royalty or other payment obligations (except for royalties or payments with respect to off-the-shelf Software at standard commercial rates), (ii) to the date Knowledge of this Agreementthe Company, Company Intellectual Property constitutes all of the Intellectual Property necessary to carry on the business of the Company shall provide Parent with a correct and complete list of all its Subsidiaries as currently conducted, (iii) Company Intellectual Property owned by the Company or any of its Subsidiaries, and to the Knowledge of the Company, all other Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To is valid and has not been cancelled, forfeited, expired or abandoned, and neither the Company nor any of its Subsidiaries has received notice challenging the validity or enforceability of Company Intellectual Property, and (iv) to the Knowledge of the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company its Subsidiaries as it is currently conducted and planned to be conducted does not infringeviolate, misappropriate or otherwise violate any infringe upon the Intellectual Property rights of any third party and party, nor to the Knowledge of the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as or its Subsidiaries received any written communications since December 31, 2007 alleging that any of them has not hadinfringed, and would not reasonably be expected to havediluted, individually misappropriated or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or violated any of the Company Subsidiaries has a confidentiality obligation)Intellectual Property of any other person. To the Company’s Knowledge, no such trade secrets other person is infringing, diluting, misappropriating or other material confidential information violating, nor has been disclosed by the Company or any or its Subsidiaries sent any written communications within the past two (2) years alleging that any person has infringed, diluted, misappropriated or violated, any of the Company Subsidiaries to any Person other than pursuant to a written agreement restricting Intellectual Property owned by the disclosure Company and use of such trade secrets or any other material confidential information by such Personits Subsidiaries.
(fb) The IT Assets For purposes of this Agreement, the term “Intellectual Property” means (i) are in operating order in trademarks, service marks, trade names, Internet domain names, designs and logos, together with all material respects registrations and are fulfilling applications related to the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, foregoing; (ii) have not, in patents and industrial designs (including any applications for either of the past three (3) years, experienced any material errors and/or breakdowns, foregoing); (iii) to copyrights (including any registrations and applications for any of the Company’s Knowledge, do not contain Unauthorized Code, foregoing); and (iv) to the Company’s Knowledgecomputer programs, have not experienced whether in source code or object code form (including any material security breachesand all software implementation of algorithms, models and (v) are considered by the Company to effectively performmethodologies), in all material respects, all information technology operations necessary to conduct the businesses of the Company databases and the Company Subsidiaries as they are currently conducted.compilations
Appears in 2 contracts
Samples: Merger Agreement (Wilmington Trust Corp), Merger Agreement (M&t Bank Corp)
Intellectual Property. (ai) Within ten The Company and its Subsidiaries own, or have validly licensed or otherwise have the right to use, all patents, patent rights, inventions and discoveries (10) Business Days following whether or not patentable or reduced to practice), trademarks, trademark rights, trade names, trade name rights, service marks, service mxxx rights, domain names, copyrights, database rights, design rights, know-how, trade secrets and other proprietary intellectual property rights, whether registered or unregistered (collectively, “Intellectual Property Rights”), that are material to the date conduct of this Agreement, any business of the Company shall provide Parent with a correct and complete list of its Subsidiaries as currently conducted. The Company and its Subsidiaries have taken all commercially reasonable steps to protect and maintain the Intellectual Property Rights owned by the Company and its Subsidiaries, including by requiring its employees and contractors to assign their rights in any proprietary Intellectual Property Rights to the Company; provided however, that the Company does not have the right to prohibit the U.S. government from using certain technologies developed or acquired by the Company or to prohibit third party companies, including the Company’s competitors, from using such technologies in providing products and services to the U.S. government.
(ii) All registered Intellectual Property Rights owned by the Company or any Company Subsidiary that is the subject of an applicationits Subsidiaries (collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual PropertyProperty Rights”)) have been disclosed in Section 3.1(p) of the Company Disclosure Letter and none is subject to any Lien (other than Permitted Liens or as disclosed in Section 3.1(p) of the Company Disclosure Letter) in favor of a third party and other than licenses granted to third parties in the ordinary course of business; provided however, together with all material unregistered trademarks. To that the Company does not have the right to prohibit the U.S. government from using certain technologies developed or acquired by the Company or to prohibit third party companies, including the Company’s Knowledgecompetitors, all from using such technologies in providing products and services to the U.S. government. Each material Registered Intellectual Property Right has not expired or been maintained effective by abandoned or cancelled and, to the filing Knowledge of all necessary filingsthe Company, maintenance is valid and renewals and timely payment of requisite feesenforceable.
(biii) To As of the date hereof, no material claims (other than as disclosed in Section 3.1(g) of the Company Disclosure Letter are pending or, to the Knowledge of the Company’s Knowledge, threatened by any Person, claiming that the Company or any of its Subsidiaries is infringing or otherwise violating the Intellectual Property Rights of any Person (i) with regard to the use of any Intellectual Property Right or (ii) in the operation or conduct of the any business of the Company and its Subsidiaries as that business is currently carried out. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, are infringing or otherwise violating any the Intellectual Property Rights of any Person by the conduct of any business of the Company and its Subsidiaries as currently conducted.
(iv) No Person is infringing, or otherwise violating, in any material respect, the rights of the Company or any of its Subsidiaries with respect to any material Registered Intellectual Property Right; provided however, that the Company Subsidiary.
(d) Except as does not have the right to prohibit the U.S. government from using certain technologies developed or acquired by the Company or to prohibit third party companies, including the Company’s competitors, from using such technologies in providing products and services to the U.S. government. Neither the Company nor any Subsidiary has not hadperformed prior acts or is engaged in current conduct or use, and to the Knowledge of the Company, there exists no prior act or current use by any third party, that would not reasonably be expected to have, individually void or in the aggregate, a Company Material Adverse Effect, invalidate any Intellectual Property Right of the Company and that is material to the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the of any business of the Company and the Company its Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) . To the Knowledge of the Company’s Knowledge, the Company and the Company its Subsidiaries have taken commercially reasonable measures not disclosed to protect the confidentiality of all trade secrets and third parties any other material confidential information of the Company and the Company or its Subsidiaries (and any confidential information owned by any Person to whom that the Company or any of the Company its Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material wish to keep confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant subject to a written agreement restricting an obligation to maintain the disclosure and use confidentiality of such trade secrets or any other material confidential information by such Personinformation.
(fv) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and its Subsidiaries take reasonable precautions to protect the Company Subsidiaries as they are currently conductedconfidentiality, integrity and security of their material software and systems.
Appears in 2 contracts
Samples: Merger Agreement (Itt Corp), Merger Agreement (Edo Corp)
Intellectual Property. (ai) Within ten If Executive creates, invents, designs, develops, contributes to or improves any works of authorship, inventions, concepts, intellectual property, materials, trademarks or similar rights, documents or other work product (10) Business Days following the date of this Agreementincluding without limitation, the Company shall provide Parent research, reports, software, algorithms, techniques, databases, systems, applications, presentations, textual works, content, improvements, or audiovisual materials), whether or not patentable or registrable under patent, trademark, copyright or similar laws (“Works”), either alone or with a correct and complete list of all Intellectual Property owned third parties, at any time during Executive’s employment by the Company or and within the scope of such employment and/or with the use of any resources of any Company Subsidiary that is the subject of an application, certificate, filing, registration Group member or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar their respective affiliates (the “Registered Intellectual PropertyCompany Group Works”), together with Executive shall promptly and fully disclose same to the Company. Executive agrees that all material unregistered trademarksCompany Group Works shall be the sole and exclusive property and intellectual property of the Company. Notwithstanding the foregoing, Executive hereby irrevocably assigns, transfers and conveys (and agrees to so assign, transfer and convey), to the maximum extent permitted by applicable law, all of Executive’s right, title, and interest therein (including rights under patent, industrial property, copyright, trademark, trade secret, unfair competition, other intellectual property laws, and related laws) to the Company to the extent ownership of any such rights does not vest originally in the Company whether as a “work made for hire” or by virtue of the prior sentence. If Executive creates any written records (in the form of notes, sketches, drawings, or any other tangible form or media) of any Company Group Works, Executive will keep and maintain same. The records will be available to and remain the sole property and intellectual property of the Company at all times.
(ii) Executive hereby assigns and agrees to assign all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”) related to any Company Group Works. To the Company’s Knowledgeextent that Moral Rights cannot be assigned under applicable law, Executive hereby waives and agrees not to enforce any and all material Registered Intellectual Property has been maintained effective by such Moral Rights, including, without limitation, any limitation on subsequent modification, to the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesfullest extent permitted under applicable law.
(biii) To Executive shall take all requested actions and execute all requested documents (including any licenses or assignments required by a government contract) at the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights expense of any third party and Company Group member (but without further remuneration) to assist the applicable Company has not received any written allegations to that effect.
(c) To the Company’s KnowledgeGroup member or its affiliates in validating, no third party is currently misappropriatingmaintaining, infringing protecting, enforcing, perfecting, recording, patenting or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or registering any of the Company Subsidiaries has a confidentiality obligation)Group members’ rights in the Company Group Works. To Executive hereby designates and appoints the Company and its designees as Executive’s agent and attorney-in-fact, to act for and in Executive’s behalf and stead to execute and file documents and to do all other lawfully permitted acts in connection with the foregoing to the extent Executive is unable or unwilling to do so. This power of attorney is coupled with an interest and is irrevocable. Executive shall not take any actions inconsistent with the Company’s Knowledgeownership rights set forth in this Section 7, no such trade secrets or other material confidential information has been disclosed including by the Company or filing to register any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonGroup Works in Executive’s own name.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) Executive shall not improperly use for the benefit of, bring to any premises of, divulge, disclose, communicate, reveal, transfer or provide access to, or share with any Company Group member or their respective affiliates any confidential, proprietary or non-public information or intellectual property relating to a former employer or other third party without the Company’s Knowledgeprior written permission of such third party. Executive shall comply with all relevant policies and guidelines of the Company Group that are from time to time previously disclosed to Executive, have not experienced any material security breaches, including regarding the protection of Confidential Information and intellectual property and potential conflicts of interest.
(v) Executive has listed on the attached Exhibit IV, Works that are considered owned by Executive, in whole or jointly with others prior to Executive’s employment with the Company to effectively perform(collectively, “Prior Works”). Executive shall not use any Prior Work during Executive’s employment with the Company, without prior written consent of the Company. If, during Executive’s employment with the Company, Executive uses or incorporates into any Company product, service or process any Prior Work (or any portion of a Prior Work), in all material respectsany manner whatsoever, all information technology operations necessary to conduct the businesses of Executive grants the Company a perpetual (or the maximum time period allowed by applicable law), sublicensable, assignable, royalty-free right and the worldwide license to use, modify, reproduce, reduce to practice, market, distribute, communicate and/or sell such Prior Work or portion of such Prior Work used by Executive in such Company Subsidiaries as they are currently conductedproduct, service or process.
Appears in 2 contracts
Samples: Employment Agreement (Bumble Inc.), Employment Agreement (Bumble Inc.)
Intellectual Property. (a) Within ten (10Schedule 4.15(a) Business Days following the date of this Agreement, the Company shall provide Parent with includes a correct and complete list listing of all of the patents, trademark, service xxxx and copyright registrations, domain names and the pending patent, trademark and copyright applications for Intellectual Property that are owned by the Seller Group.
(b) Schedule 4.15(b) also includes a listing of all licenses and other agreements to which the Seller Group is a party that are material to the operation of the Business and pursuant to which the Seller Group authorizes any other Person to use any Intellectual Property, and also includes a listing of all licenses and other agreements pursuant to which Intellectual Property that is used in and material to the operation of the Business and owned by Persons other than the Seller Group is licensed to the Seller Group.
(c) Each material item of Transferred Intellectual Property owned by the Company Seller Group (i) is valid, subsisting and in full force and effect and (ii) has not been abandoned or passed into the public domain. Except as set forth on Schedule 4.15(c), the Seller Group has not been notified in writing prior to the date of this Agreement that it is or may be infringing any Company Subsidiary that is the subject of an applicationpatents, certificatetrade secrets, filingtrademarks, registration trade names, service marks, service names, copyrights or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and, to the Knowledge of the Sellers, there is no continuing infringement of the Transferred Intellectual Property by other Persons. Except as set forth on Schedule 4.15(c), the Seller Group as of the date of this Agreement is not bound by any outstanding judgment, injunction, order or decree restricting the use of the Transferred Intellectual Property, or restricting the licensing thereof by the Seller Group to any Person, and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company issued patents and the Company Subsidiaries own issued trademark, service xxxx and copyright registrations and URLs listed on Schedule 4.15(a) have not lapsed, expired or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have been cancelled. The Seller Group has taken commercially reasonable measures to protect the confidentiality of and maintain all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the CompanySeller Group’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, rights in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedTransferred Intellectual Property.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Borders Group Inc), Asset Purchase Agreement
Intellectual Property. (a) Within ten (10) Business Days following The Company owns or has the date of this Agreementright to use all the Company's Intellectual Property, the Company shall provide Parent with a correct free and complete list clear of all Liens, except where the failure to own or possess such Intellectual Property owned by the would not be reasonably likely to have a Material Adverse Effect. The Company or any Company Subsidiary that one of its Subsidiaries is listed in the subject records of an applicationthe appropriate United States, certificatestate or foreign agency as the sole owner of record for all material applications, filing, registration registrations or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (patents included in the “Registered Company's Intellectual Property”), together with and all material unregistered trademarks. To of the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by foregoing are listed on Section 4.16(a) of the filing of all necessary filings, maintenance Disclosure Schedule and renewals and timely payment of requisite feesare validly subsisting.
(b) Section 4.16(b) of the Disclosure Schedule sets forth a list of all license agreements under which the Company or any of its Subsidiaries has granted the right to use the Company's Intellectual Property or received the right to use any Intellectual Property of any third party.
(c) Except as set forth in Section 4.16(c) of the Disclosure Schedule, no person has a right to receive a royalty or similar payment in respect of any item of the Intellectual Property pursuant to any contractual arrangements entered into by the Company or otherwise. To the knowledge of the Company’s Knowledge, no former or present employees, officers or directors of the Company hold any right, title or interest, directly or indirectly, in whole or in part, in or to any of the Company's Intellectual Property.
(d) To the knowledge of the Company, the conduct of the business of the Company does not materially violate or infringe upon any Intellectual Property right of any third party, and there is no pending or threatened opposition, interference, re-examination, cancellation, claim of invalidity or other legal or governmental proceeding in any jurisdiction involving any of the Company's Intellectual Property. There are no claims or suits pending or, to the knowledge of the Company, threatened, and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate has received no written notice of any claim or otherwise violate any Intellectual Property suit (i) alleging that the conduct of the Company's business infringes upon or constitutes the unauthorized use of the proprietary rights of any third party and or (ii) challenging the Company has not received any written allegations to that effect.
(c) To ownership, use, validity or enforceability of the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any 's Intellectual Property rights which, if adversely determined, would be reasonably likely to have a Material Adverse Effect. Except as set forth in Section 4.16(d) of the Disclosure Schedule, to the knowledge of the Company, none of the Intellectual Property of the Company is being violated or infringed upon by any Company Subsidiary.
(d) Except as has not hadthird party. There are no settlements, and would not reasonably be expected to haveconsents, individually judgments, orders or in other agreements which restrict the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid Company's rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or use any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personits Intellectual Property.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (National Service Industries Inc), Merger Agreement (Holophane Corp)
Intellectual Property. (a) Within ten Section 3.12(a) of the Disclosure Schedule sets forth (10i) Business Days following the date of this Agreement, the Company shall provide Parent with a correct and complete list of (i) all material Intellectual Property other than trade secrets owned by the Company or any Company Subsidiary that is the subject Group Companies, (ii) a description of an applicationmaterial trade secrets (collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Company Intellectual Property”), together with and (iii) all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesCompany IP Agreements (other than those for “shrink-wrap” or “off-the-shelf” commercially available Software).
(b) Each Group Company is the exclusive owner of the entire and unencumbered right, title and interest in and to the Company Intellectual Property (except for those still under application), and has a valid license to use the Licensed Intellectual Property in connection with its Business. Each Group Company is entitled to use all Company Intellectual Property and the Licensed Intellectual Property in the continued operation of its Business without limitation, subject only to the terms of the Company IP Agreements and applicable Laws.
(c) The Company Intellectual Property and the Licensed Intellectual Property include all of the material Intellectual Property required for the conduct of or used in connection with the Business, and there are no other items of Intellectual Property that are material to the conduct of the Business. Section 3.12(c) of the Disclosure Schedule includes a list of all material Intellectual Property (other than trade secrets) licensed or provided by the Warrantors or their Affiliates (excluding the Group Companies) to the Group Companies. The Company Intellectual Property (except for those still under application) and, to the Knowledge of the Warrantors, the Licensed Intellectual Property are subsisting, valid and enforceable, and have not been adjudged invalid or unenforceable in whole or in part. Each item of Company Intellectual Property registered with a Government Authority is in compliance with all applicable Laws, and all filings, payments and other actions required by applicable Laws to be made or taken to maintain such Intellectual Property rights in full force and effect have been made or taken.
(d) To the Company’s KnowledgeKnowledge of the Warrantors, the conduct of the business Business and the use of the Company Intellectual Property and the Company Subsidiaries as it is currently conducted and planned to be conducted does Licensed Intellectual Property, do not conflict with, infringe, misappropriate or otherwise violate any the Intellectual Property rights of any third party party, and no Action alleging any of the foregoing is pending, and no claim has been asserted against any Group Company has not received alleging any written allegations to that effect.
(c) of the foregoing. To the Company’s KnowledgeKnowledge of the Warrantors, there are no third party is currently misappropriating, infringing infringements or otherwise violating other violations of any Company Intellectual Property rights by any third party. No Company Intellectual Property is subject to any pending, or to the Knowledge of the Warrantors, threatened governmental Order or Action challenging or restricting the use of such Company Intellectual Property or any Company Subsidiary.
(d) Except as has not had, and that would not reasonably be expected to have, individually impair the validity or in the aggregate, a enforceability of such Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(e) To None of the Company’s Knowledge, Group Companies has granted in writing any license or other right to any third party with respect to the Company Intellectual Property or Licensed Intellectual Property other than in the ordinary course of business. Neither the execution, delivery and performance of this Agreement or any other Transaction Documents nor the consummation of any of the transactions contemplated hereby and thereby will reasonably be expected to alter or impair the validity or enforceability of Company Subsidiaries have Intellectual Property or Licensed Intellectual Property.
(f) Each of the directors of, current and former employees employed, and current and former consultant engaged, by each Group Company as of the Closing is under written obligation for the benefit of the Group Companies, to maintain in confidence all confidential and proprietary information acquired by them during the course of their employment and all rights and title to and ownership of all inventions made by them within the scope of their employment by the Group Companies during such employment and for a reasonable period thereafter are vested in and remain with the Group Companies. Each Group Company has taken commercially reasonable measures to protect the secrecy, and confidentiality of all of their trade secrets and any other material confidential information and, to the Knowledge of the Warrantors, there has been no unauthorized disclosure of any data or information which, but for any such unauthorized disclosure, such Group Company and the Company Subsidiaries (and any confidential information would consider to be a trade secret owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the such Group Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Share Purchase Agreement (NetEase, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Intellectual Property. (a) Within ten The Company and/or each of its Subsidiaries owns, or is licensed or otherwise possesses legally enforceable rights to use all patents, trademarks, trade names, service marks, copyrights and any applications therefor, technology, know-how, computer software programs or applications, and tangible or intangible proprietary information or materials that are used in the business of the Company and its Subsidiaries as currently conducted, except for any such failures to own, be licensed or possess that would not have in the aggregate a Material Adverse Effect on the Company, and to the Knowledge of the Company, all patents, trademarks, trade names, service marks and copyrights held by the Company and/or its Subsidiaries are valid and subsisting.
(10b) Business Days following Except as disclosed in Company SEC Reports filed prior to the date hereof or as would not have, in the aggregate, a Material Adverse Effect on the Company:
(i) the Company is not, nor will it be as a result of the execution and delivery of this Agreement or the performance of its obligations hereunder, in violation of any licenses, sublicenses and other agreements as to which the Company or any of its Subsidiaries is a party and pursuant to which the Company is authorized to use any third-party patents, trademarks, service marks, and copyrights ("Third-Party Intellectual Property Rights");
(ii) no claims with respect to (I) the patents, registered and material unregistered trademarks and service marks, registered copyrights, trade names, and any applications therefor owned by the Company or any of its Subsidiaries (the "Company Intellectual Property Rights"); (II) any trade secret material to the Company or any of its Subsidiaries; or (III) Third-Party Intellectual Property Rights, as of the date of this Agreement, are pending or, to the Knowledge of the Company, are threatened by any Person;
(iii) the Company shall provide Parent with a correct and complete list does not Know of all Intellectual Property owned any valid grounds for any bona fide claims (I) to the effect that the sale, licensing or use of any product as now used, sold or licensed or proposed for use, sale or license by the Company or any Company Subsidiary that is of its Subsidiaries, infringes on any copyright, patent, trademark, service mark xx trade secret; (II) against the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective use by the filing Company or any of all necessary filingsits Subsidiaries, maintenance of any trademarks, trade names, trade secrets, copyrights, patents, technology, know-how or computer software programs and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of applications used in the business of the Company and or any of its Subsidiaries as currently conducted or as proposed to be conducted; (III) challenging the ownership, validity or effectiveness of any of the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights Rights or other trade secret material to the Company; or (IV) challenging the license or legally enforceable right to use of the Third-Party Intellectual Rights by the Company or any of its Subsidiaries; and
(iv) to the Knowledge of the Company, there is no unauthorized use, infringement or misappropriation of any third party and of the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights Rights by any third party, including any employee or former employee of the Company or any Company Subsidiaryof its Subsidiaries.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Align Rite International Inc), Merger Agreement (Macdonald James L)
Intellectual Property. The Company and each Subsidiary owns, possesses, licenses or has other rights to use the patents and patent applications, copyrights, trademarks, service marks, trade names, Internet domain names, technology, know-how (aincluding trade secrets and other unpatented and/or unpatentable proprietary rights) Within ten and other intellectual property necessary or used in any material respect to conduct its business in the manner in which it is being conducted and in the manner in which it is contemplated as set forth in the General Disclosure Package and the Prospectus (10) Business Days following the date of this Agreementcollectively, the Company shall provide Parent with a correct and complete list “Intellectual Property”). To the knowledge of all the Company, none of the Intellectual Property owned by is unenforceable or invalid; none of the Company or any Subsidiary has received any notice of violation or conflict with (and none of the Company or a Subsidiary knows of any basis for violation or conflict with) rights of others with respect to the Intellectual Property; there are no pending or, to the Company’s knowledge, threatened Proceedings or claims by others that allege any of the Company or a Subsidiary is infringing any patent, trade secret, trademark, service mxxx, copyright or other intellectual property or proprietary right. To the knowledge of the Company, the discoveries, inventions, products or processes of the Company or a Subsidiary referenced in the General Disclosure Package and the Prospectus do not violate or conflict with any intellectual property or proprietary right of any third Person, or any discovery, invention, product or process that is the subject of an application, certificate, filing, registration or other document issued by, a patent application filed with or recorded by any Governmental Authority third Person; no officer, director or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights employee of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or a Subsidiary is in or has ever been in violation of any Company Subsidiary.
(d) Except as has not hadterm of any patent non-disclosure agreement, and invention assignment agreement, or similar agreement relating to the protection, ownership, development use or transfer of the Intellectual Property or, to the Company’s knowledge, any other intellectual property, except where any violation would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business . None of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any Subsidiary are in breach of, and have complied in all material respects with all terms of, any license or other agreement relating to the Intellectual Property. There are no contracts or other documents related to the Intellectual Property required to be described in or filed as an exhibit to the General Disclosure Package and the Prospectus other than those described in or filed as an exhibit to the General Disclosure Package and the Prospectus. Except as disclosed in the General Disclosure Package and the Prospectus, none of the Company Subsidiaries or a Subsidiary is subject to any non-competition or other similar restrictions or arrangements relating to any business or service anywhere in the world. The Company and each Subsidiary has a taken all necessary and appropriate steps to protect and preserve the confidentiality obligationof applicable Intellectual Property (“Confidential Information”). To the Company’s Knowledge, no such trade secrets All use or other material confidential information has been disclosed disclosure of Confidential Information owned by the Company or any Company Subsidiaries a Subsidiary by or to any Person other than a third party has been pursuant to a written agreement restricting between the Company and/or Subsidiary and such third party. All use or disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do Confidential Information not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered owned by the Company or a Subsidiary has been pursuant to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses terms of a written agreement between the Company and/or Subsidiary and the Company Subsidiaries as they are currently conductedowner of such Confidential Information, or is otherwise lawful.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Applied Dna Sciences Inc), Securities Purchase Agreement (Applied Dna Sciences Inc)
Intellectual Property. Each of the Company and its Subsidiaries owns or is duly licensed (aand, in such event, has the unfettered right to grant sublicenses) Within ten to use all patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, permits, inventions, discoveries, processes, scientific, technical, engineering and marketing data, object and source codes, know-how (10including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) Business Days following and other similar rights and proprietary knowledge (collectively, “Intellectual Property”) used in or necessary for the date conduct of this Agreementits business as now being conducted and as presently contemplated to be conducted in the future (collectively, the “Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with . Section 3(k) of the Disclosure Schedule sets forth a list of all material unregistered trademarksCompany Intellectual Property owned and/or used by the Company in its business. To Except as set forth on the Disclosure Schedule, there are no rights of third parties to any of the Company Intellectual Property except through licensing agreements. Except as set forth on the Disclosure Schedule, there are no outstanding options, licenses or agreements of any kind relating to the Company Intellectual Property, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the Intellectual Property of any other person or entity (collectively, the “Third Party License Agreements”) other than such licenses or agreements arising from the purchase of generally available products, as to which the aggregate consideration paid by or due from the Company does not exceed $25,000 in value, or “off the shelf” products. All of the Third Party License Agreements are valid, binding and in full force and effect in all material respects and to the Company’s Knowledge, knowledge enforceable by the Company in accordance with their respective terms in all material Registered Intellectual Property has been maintained effective by the filing respects, subject to general principles of all necessary filingsequity or applicable bankruptcy, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledgeinsolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the conduct enforcement of the business of the creditors’ rights and remedies. The Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights in breach of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledgesuch Third Party License Agreements, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except other than such breaches as has not had, and would not reasonably be expected to haveresult, individually or in the aggregate, in a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledgeknowledge, no other party to any of the Third Party License Agreements is in default thereunder, other than such trade secrets defaults as would not result, individually or other material confidential information has been disclosed by in the aggregate, in a Material Adverse Effect. Neither the Company nor any Subsidiary of the Company infringes or is in conflict with any Company Subsidiaries right of any other person with respect to any Person other than pursuant to a third party Intellectual Property. Neither the Company nor any of its Subsidiaries has received written agreement restricting the disclosure and use notice of such trade secrets any pending conflict with or infringement upon any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquiredthird party Intellectual Property. There is no pending or, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledgeknowledge, do not contain Unauthorized Codethreatened action, (iv) to suit, proceeding or claim by others challenging the Company’s Knowledgeownership of or licensing rights in or to any Company Intellectual Property. Neither the Company nor any of its Subsidiaries has entered into any consent agreement, have not experienced indemnification agreement, forbearance to sxx or settlement agreement with respect to the validity of the Company’s or its Subsidiaries’ ownership of or right to use its Company Intellectual Property and there is no reasonable basis for any material security breachessuch claim to be successful. The Company Intellectual Property are valid and enforceable and no registration relating thereto has lapsed, expired or been abandoned or canceled or is the subject of cancellation or other adversarial proceedings, and (v) all applications therefor are considered by pending and in good standing. The Company has taken all reasonable steps required to perfect its ownership of and interest in its Company Intellectual Property and has taken reasonable security measures to protect the secrecy, confidentiality and value of all of its Company to effectively performIntellectual Property. The Company and its Subsidiaries have complied, in all material respects, all information technology operations necessary with their respective contractual obligations relating to conduct the businesses protection of the Company and Intellectual Property used pursuant to licenses. No person is infringing on or violating the Company Subsidiaries as they are currently conductedIntellectual Property owned or used by the Company or its Subsidiaries.
Appears in 2 contracts
Samples: Securities Purchase Agreement (True Drinks Holdings, Inc.), Securities Purchase Agreement (True Drinks Holdings, Inc.)
Intellectual Property. (a) Within ten (10Section 3.14(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of all the following categories of Company Owned Intellectual Property owned by as of the date hereof: (i) registered Trademarks and pending Trademark applications; (ii) issued Patents and pending Patent applications; and (iii) registered Copyrights. The Company or any owns all Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Owned Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To Except as would not reasonably be likely to have a Material Adverse Effect, to the knowledge of the Company’s Knowledge, since January 1, 2003:
(i) the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights right of any third party Person, and no written notice has been received prior to the date hereof alleging anything to the contrary;
(ii) all Company Owned Intellectual Property is valid and enforceable, and no written notice has been received prior to the date hereof alleging anything to the contrary;
(iii) no Trade Secret owned by the Company or any Company Subsidiary has not received been disclosed to any third Person other than pursuant to written allegations to that effect.non-disclosure agreements;
(civ) To the Company’s Knowledge, no third party is currently misappropriatingPerson has infringed, infringing misappropriated or otherwise violating violated any Company Owned Intellectual Property Property;
(v) there are no settlements, forbearances to xxx, consents, judgments, orders or other obligations, other than licenses made in the ordinary course of business, that do or may: (A) restrict the rights of the Company or Company Subsidiaries to use any Company Subsidiary.
Owned Intellectual Property; (dB) Except as has not had, and would not reasonably be expected to have, individually or in restrict the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct of the business of the Company and the Company Subsidiaries as it is currently conductedin order to accommodate a third Person’s Intellectual Property; provided, however, that the foregoing representation and warranty in this Section 4.21(dor (C) shall not constitute or be deemed or construed as permit third Persons to use any representation or warranty with respect to infringement, misappropriation, or violation of any Company Owned Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(ec) To For purposes of this Agreement, (i) “Copyrights” means U.S. and foreign registered and unregistered copyrights (including those in computer software and databases), and all registrations and applications to register the Company’s Knowledge, the same; (ii) “Company and the Company Subsidiaries have taken commercially reasonable measures Owned Intellectual Property” means all Intellectual Property that is purported to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information be owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.any
Appears in 2 contracts
Samples: Merger Agreement (Square D Co), Merger Agreement (Fremont Partners Lp)
Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with a correct and complete list of The Group Companies have rights or rights to acquire on commercially reasonable terms all Intellectual Property owned by material to the Company or Business, including any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded Intellectual Property held by any Governmental Authority or domain name registrar (senior management of the “Registered Intellectual Property”)Group Companies, together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesas set forth in Schedule 3.17.
(b) To the Company’s Knowledge, the conduct None of the business Group Companies has taken any action or failed to take any action that could reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation or unenforceability of any of the Company registered Intellectual Property material to the Business (including the failure to pay any filing, examination, issuance, post registration and maintenance fees, annuities and the like and the failure to disclose any known material prior art in connection with the prosecution of patent applications). Each Group Company Subsidiaries as it is currently conducted and planned has taken all reasonable steps in accordance with standard industry practices to be conducted does not infringe, misappropriate or otherwise violate any protect its rights in its Intellectual Property rights and at all times has maintained the confidentiality of any third party and the Company has not received any written allegations to all information that effectconstitutes or constituted a trade secret of each Group Company.
(c) To the Company’s Knowledge, no The material licenses licensed to any Group Company by a third party is currently misappropriatinglicensor are in full force and effect, infringing or otherwise violating any Intellectual Property rights and none of the Company or Group Companies is in default under any Company Subsidiaryof such licenses, and no Person who is a party to any of such licenses has exercised any termination rights with respect thereto.
(di) Except as has not had, and would not reasonably be expected No Group Company is a party to have, individually or in the aggregate, any pending legal proceedings which involve a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business claim of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriationunauthorized use, or violation of any intellectual property right by any Person against such Group Company or challenging the ownership, use, validity or enforceability of, any material Intellectual Property owned by or exclusively licensed to such Group Company, and (ii) no Group Company has received any notice or claim challenging a Group Company ownership of any of the Intellectual Property owned (in whole or in part), nor to the Knowledge of Seller Parties is there a reasonable basis for any claim that a Group Company does not so own any of such Intellectual Property. All of each Group Company's rights (which in and to material Intellectual Property owned by such Group Company are valid and enforceable. No Intellectual Property owned by or licensed to the Group Companies is addressed in Section 4.21(b) and Section 4.21(c))subject to any outstanding order, judgment or decree restricting the use or licensing thereof by the Group Companies.
(e) To the Company’s KnowledgeKnowledge of Seller Parties, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and no Person is infringing, violating, misusing or misappropriating any other material confidential information of the Company and the Company Subsidiaries (and any confidential information Intellectual Property owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Group Company’s Knowledge, and no such trade secrets or other material confidential information has written claims have been disclosed by the Company or any Company Subsidiaries to made against any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or by any other material confidential information by such PersonGroup Company.
(f) The IT Assets (i) are in operating order in all material respects consummation of the transactions contemplated hereby and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, thereby will not result in the past three (3) years, experienced loss or impairment of Buyer's right to own or use any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedmaterial Intellectual Property owned by any Group Company.
Appears in 2 contracts
Samples: Share Purchase Agreement (Focus Media Holding LTD), Share Purchase Agreement (Focus Media Holding LTD)
Intellectual Property. (a) Within ten (10) Business Days following The Company and/or each of its Subsidiaries owns, or is licensed or otherwise possesses the date right to use all Company Intellectual Property necessary for the operation of this Agreementtheir business and, to the Knowledge of the Company, the use of the Company shall provide Parent Intellectual Property by the Company and its Subsidiaries does not constitute an infringement or misappropriation of any third party Intellectual Property.
(b) No claims are currently pending or, to the Knowledge of the Company, threatened by any person with a correct and complete list of all respect to the Company Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarksits Subsidiaries. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective There are no pending claims by the filing of all necessary filingsCompany or any Subsidiary alleging or asserting that any third party has violated, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business misappropriated or infringed any of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights nor, to the Knowledge of the Company, is there any third party and the Company has not received basis for any written allegations to that effectsuch claim.
(c) To The Company and its Subsidiaries have taken commercially reasonable steps to maintain the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights confidentiality of the Company or any Company Subsidiarytheir material trade secrets.
(d) Except as has not hadAs used herein, the term “Intellectual Property” shall mean all patents, patent applications, statutory invention registrations, inventions and other industrial property rights; trademarks, service marks, trade names, trade dress, logos, including registrations and applications for the registration thereof; copyrights (including without limitation, computer software programs); Internet domain name registrations; Internet web sites, and would not reasonably be expected to haveregistrations and applications for registrations thereof; trade secrets and, individually or in each case under the laws of any jurisdiction in the aggregateworld, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid including rights to use, all Intellectual Property necessary to conduct the business of the Company under and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringementall applications, misappropriationregistrations, or violation continuations, divisions, renewals, extensions and reissues of any the foregoing. As used herein, “Company Intellectual Property” shall mean the material Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information currently owned or used by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personits Subsidiaries.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Hampshire Group LTD), Merger Agreement (Naf Holdings Ii, LLC)
Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with Set forth on Schedule 4.15 is a correct list and complete list description of all Intellectual Property owned material foreign and domestic patents, patent rights, trademarks, service marks, trade names, brands, copyrights (whether or not registered and, if applicable, including pending applications for registration), software, programs, formulae, URL names and other know-how or trade secrets that are owned, Used, licensed or controlled by the Company and SBN and all goodwill associated therewith. The Company owns or has the right to use and shall as of the Closing Date own or have the right to use any and all information, know-how, trade secrets, patents, copyrights, trademarks, tradenames, software, URL names, formulae, methods, processes and other intangible properties that are necessary or customarily Used by the Company Subsidiary that is for the subject ownership, management or operation of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar its Properties (the “Registered Intellectual Property”)) including, together with all material unregistered trademarks. To but not limited to, the Company’s Knowledge, all material Registered Intellectual Property listed on Schedule 4.15. Except as set forth on Schedule 4.15, (i) the Company is the sole and exclusive owner of all right, title and interest in and to all of the Intellectual Property, and has been maintained effective the exclusive right to use and license the same, free and clear of any claim or conflict with the Intellectual Property of others; (ii) no royalties, honorariums or fees are payable by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct Company to any person by reason of the business ownership or use of any of the Intellectual Property; (iii) there have been no claims made against the Company asserting the invalidity, abuse, misuse, or unenforceability of any of the Intellectual Property and no grounds for any such claims exist; (iv) the Company has not made any claim of any violation or infringement by others of any of its Intellectual Property or interests therein and, to the Knowledge of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringeStockholder, misappropriate or otherwise violate no grounds for any Intellectual Property rights of any third party and such claims exist; (v) the Company has not received any written allegations to notice that effect.
(c) To it is in conflict with or infringing upon the asserted intellectual property rights of others in connection with the Intellectual Property, and neither the use of the Intellectual Property nor the operation of the Company’s Knowledge, no third party businesses is currently misappropriating, infringing or otherwise violating has infringed upon any intellectual property rights of others; (vi) the Intellectual Property are sufficient and include all intellectual property rights necessary for the Company to lawfully conduct its business as presently being conducted; (vii) no interest in any of the Company Company’s Intellectual Property has been assigned, transferred, licensed or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, sublicensed by the Company and to any person other than GenuTec pursuant to this Agreement; (viii) to the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all extent that any item constituting part of the Intellectual Property necessary has been registered with, filed in or issued by, any Governmental Authority, such registrations, filings or issuances are listed on Schedule 4.15 and were duly made and remain in full force and effect; (ix) to conduct the business Knowledge of the Company and the Company Subsidiaries as it is currently conducted; providedStockholder, however, that the foregoing representation and warranty in this Section 4.21(d) shall there has not constitute been any act or be deemed or construed as any representation or warranty with respect failure to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned act by any Person to whom the Company or any of its directors, officers, employees, attorneys or agents during the prosecution or registration of, or any other proceeding relating to, any of the Intellectual Property or of any other fact which could render invalid or unenforceable, or negate the right to issuance of any of the Intellectual Property; (x) to the extent any of the Intellectual Property constitutes proprietary or confidential information, the Company Subsidiaries has a confidentiality obligation)adequately safeguarded such information from disclosure; and (xi) all of the Company’s current Intellectual Property will remain in full force and effect following the Closing without alteration or impairment. To the Company’s Knowledge, no such trade secrets extent that any of the Intellectual Property is owned or other material confidential information has been disclosed Used by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets Stockholder, SBN or any other material confidential information by third Person, firm or corporation, on or prior to the Closing Date, the Stockholder, SBN and such Person.
(fother Persons(s) The IT Assets (i) are in operating order in shall assign all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, of their rights in the past three (3) years, experienced any material errors and/or breakdowns, (iii) Intellectual Property to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by without obligating GenuTec or the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedany further payments or royalties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GenuTec Business Solutions, Inc.), Agreement and Plan of Merger (GenuTec Business Solutions, Inc.)
Intellectual Property. (a) Within ten (10Section 3.15(a) Business Days following of the date Company Disclosure Schedule sets forth a complete and accurate list of this AgreementCompany Registered Intellectual Property. For each listed item, Section 3.15(a) of the Company Disclosure Schedule indicates, as applicable, the Company shall provide Parent with a correct and complete list owner of all such Intellectual Property, the countries in which such Intellectual Property is patented or registered, the patent or registration number, and the filing dates thereof.
(b) All of the Company Owned Intellectual Property is wholly and exclusively owned by the Company or any a Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing free and clear of all necessary filingsLiens (other than Outbound License Agreements, maintenance Services Agreements, On-Premise Agreements and renewals Permitted Liens). The foregoing representation and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it warranty is currently conducted and planned not intended to be conducted does not infringea representation regarding the absence of infringement or misappropriation, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectwhich is addressed in Section 3.15(j) below.
(c) To The Company or a Company Subsidiary owns all right, title and interest in, or has a valid ongoing right to use in a manner consistent with the Company’s Knowledgecurrent use in the Company Products, no the Intellectual Property and Software incorporated or embedded in, included in, or necessary to offer the currently available Company Products, including all Company Source Code (but excluding Commercially Available Software). The foregoing representation and warranty is not intended to be a representation regarding the absence of infringement or misappropriation, which is addressed in Section 3.15(j) below.
(d) Other than pursuant to the Outbound License Agreements and On-Premise Agreements, neither the Company nor any Company Subsidiary has distributed or otherwise transferred to any third party is currently misappropriating, infringing or otherwise violating any Company Owned Intellectual Property or Company Product.
(e) No Person who has licensed Intellectual Property or Software to the Company or any of the Company Subsidiaries has ownership rights or license rights to material improvements and other material amendments made by the Company or any of the Company Subsidiaries in such Intellectual Property.
(f) [Reserved].
(g) Neither the Company nor any of the Company Subsidiaries is in breach of any of the material terms or conditions of any license to any Open Source Materials, except as would not materially affect the business or operations of the Company or any Company Subsidiary.
(dh) Except as has not hadAll material Company Owned Intellectual Property that is used in or necessary for the conduct of the business of the Company or any Company Subsidiary, was (A) created by employees of the Company or a Company Subsidiary acting within the scope of their employment who have validly and irrevocably assigned all of their rights, including Intellectual Property rights therein, to the Company or a Company Subsidiary, subject to any rights that may be reserved to the author by Law, or (B) validly and irrevocably assigned to the Company or a Company Subsidiary by other Persons, and would not reasonably subject to any rights that may be expected reserved to havethe author by Law, individually no other Person owns or in has any rights to any portion of such Intellectual Property or Software (other than pursuant to Outbound License Agreements, On-Premise Agreements and Services Agreements).
(i) All Company Owned Intellectual Property and the aggregateCompany Products will be fully transferable, a alienable and licensable by the Company Material Adverse Effector its Affiliates without restriction and without payment to any Person, subject to Outbound License Agreements, On-Premise Agreements and Services Agreements.
(j) To the Knowledge of the Company, the operation by the Company and the Company Subsidiaries own or are licensed to of their respective businesses, including the design, development, use, import, export, manufacture, licensing, sale, service offering or otherwise possess valid rights to use, all other disposition of the Company Products has not infringed or misappropriated the Intellectual Property necessary to conduct rights of any Person, does not infringe or misappropriate the business Intellectual Property rights of any Person and will not infringe or misappropriate the Intellectual Property rights of any Person. The operation by the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall of their respective businesses does not constitute unfair competition or be deemed trade practices under applicable Laws. Since October 1, 2011, neither the Company nor any Company Subsidiary has received any notice from any Person (i) claiming that such operation or construed as any representation Company Product (A) infringes or warranty with respect to infringement, misappropriation, or violation of any misappropriates the Intellectual Property rights of any third Person or (which B) constitutes unfair competition or trade practices under the applicable Laws (nor to the Company’s Knowledge is addressed there any basis therefor), or (ii) suggesting that a license to third party Intellectual Property is required in Section 4.21(b) connection with operation by the Company and Section 4.21(c))the Company Subsidiaries of their respective businesses or in connection with any Company Product.
(ek) Each material item of Company Registered Intellectual Property (A) is subsisting and (B) is, to the Knowledge of the Company, valid and enforceable.
(l) To the Company’s Knowledge, since October 1, 2011, neither the Company nor any Company Subsidiary has received notice of any pending, decided or settled opposition, interference, reexamination, injunction, lawsuit, proceeding, hearing, investigation, complaint, arbitration, mediation, demand, decree, or any other dispute, disagreement, or claim (a “Dispute”) related to the Company Owned Intellectual Property and/or any Intellectual Property or Software material to and embodied or incorporated in any Company Product where such Dispute, if determined adversely, would or would reasonably be expected to have a material and adverse effect on the Company and the Company Subsidiaries have Subsidiaries, taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has as a confidentiality obligation)whole. To the Company’s Knowledge, no Dispute has been threatened, challenging the legality, validity, enforceability or ownership of any Company Owned Intellectual Property or Software and to the Company’s Knowledge, there exists no basis that would give rise to such trade secrets a Dispute. Since October 1, 2011, neither the Company nor any Company Subsidiary has initiated any lawsuits against any third Person based on allegations of infringement of any Company Owned Intellectual Property.
(m) To the Knowledge of the Company, none of the Company, any Company Subsidiary or any other party acting on behalf of the Company or any Company Subsidiary has disclosed or delivered to any third party, or permitted the disclosure or delivery by any escrow agent or other third party to any third party, any Company Source Code. To the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, require the disclosure or delivery by the Company, any Company Subsidiary or any other party acting on behalf of Company or any Company Subsidiary to any third party of any Company Source Code. Neither the execution of this Agreement nor the consummation of the Merger or any of the other transactions contemplated hereby, in and of itself, would reasonably be expected to result in the release of any Company Source Code from escrow or an obligation to grant rights to or deliver any Company Source Code to any third party.
(n) Neither the Company nor any Company Subsidiary is bound to any Contract that will cause as a result of this Agreement or the transactions contemplated hereby: (A) Parent, any Parent Subsidiary (including Merger Sub), the Company or any Company Subsidiary granting to any Person any right to or with respect to any Intellectual Property or Software owned by, or licensed to, Parent, Merger Sub, any Parent Subsidiary, the Company or any Company Subsidiary, or (B) Parent, Merger Sub, any Parent Subsidiary, the Company or any Company Subsidiary being obligated to pay any material royalties or other material confidential information amounts to any Person in excess of those payable by any of them, respectively, in the absence of this Agreement or the Transactions, provided, in each of clauses (A) and (B), any result affecting Parent, Merger Sub or any Parent Subsidiary in the manner described in such clauses must be solely related to the acquisition of, and future ownership by, Parent or Merger Sub of the Company or any Company Subsidiary as contemplated by this Agreement or the Transactions and shall not, under any circumstances, result from any other Contract or arrangement to which Parent, Merger Sub or any Parent Subsidiary is a party.
(o) The Company and each Company Subsidiary has taken all commercially reasonable measures to protect the Company’s or such Company Subsidiary’s rights in the Trade Secrets owned by the Company or such Company Subsidiary, and for any Trade Secrets owned by any other Person that have been disclosed provided to the Company or such Company Subsidiary under Contract, the Company and such Company Subsidiaries are not in material breach of the terms of such Contract with respect to the confidentiality or use of such Trade Secrets. The Company and each Company Subsidiary has, and enforces in all material respects, a policy requiring all employees, consultants and contractors of the Company and each Company Subsidiary to execute Intellectual Property assignment and confidentiality agreements for the benefit of the Company or such Company Subsidiary, and to the Company’s Knowledge, all current and former employees, consultants and contactors of the Company or such Company Subsidiary have executed such an agreement.
(p) To the Company’s Knowledge, none of the Company Owned Intellectual Property or Company Products was developed by, or using, nor has the Company nor any Company Subsidiary requested, sought, applied for or entered into any agreement with respect to, funds, grants or any other subsidies from, any Governmental Entity or any university, and no government funding, facilities, faculty or students of a university, college, other educational institution or research center or funding from third parties was used in the development of the Company Owned Intellectual Property or Company Products.
(q) Neither the Company nor any Company Subsidiary is subject to any agreement with any standards bodies or other entities that would obligate the Company or any Company Subsidiary to grant licenses or rights to or otherwise impair its control, enforcement or use of any Company Owned Intellectual Property, Company Products or Software owned by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonSubsidiary.
(fr) The IT Assets (i) There are in operating order in all material respects and are fulfilling the purposes for which they were acquiredno pending, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Codethreatened claims made by any third party against the Company or the Company Subsidiaries for any product liability or breach of contract (whether based on contract or tort and whether relating to personal injury, including death, property damage or economic loss) arising from (A) services rendered by the Company or any of the Company Subsidiaries, (ivB) to the sale, distribution, or installation of Software or other products by the Company or any of the Company Subsidiaries, or (C) the operation of the Company’s Knowledge, have not experienced or any material security breaches, and (v) are considered by of the Company to effectively performSubsidiaries’ respective businesses. In their operation and provision of the Company Products, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedmaterially comply with all applicable Laws.
Appears in 2 contracts
Samples: Merger Agreement (Concur Technologies Inc), Merger Agreement (Concur Technologies Inc)
Intellectual Property. Neither the Founders nor any other employee, manager or officer of the Companies or any of their former employers holds any intellectual property rights relating to the existing or anticipated business of the Companies. No contractual or other obligation or restriction of any nature whatsoever prevents any of the Founders and, to the best knowledge of the Company, any other employee, manager or officer of the Companies from using for the benefit of the Companies the experience and skills acquired by them while employed by any other company or entity. Except as set forth in Exhibit 4.1.10(b), the Companies have full and valid title, through direct ownership or a license, to the use of all software, trademarks, domain names, patents, key copyrights and other intellectual property rights used or necessary to the daily operation or development of their existing business (a) Within ten (10) Business Days following hereinafter the “Intellectual Property Rights” as listed under Exhibit 4.1.10(a)). The Companies are in material compliance with each of such licenses and license agreements. Except as set forth in Exhibit 4.1.10, there is no action or, to the best knowledge of the Company, threat thereof relating to the Intellectual Property Rights against the Companies with respect to facts having occurred prior to the date of this Agreement, and, to the Company shall provide Parent with a correct and complete list best knowledge of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by (i) their operation as at the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted date hereof does not infringe, misappropriate or otherwise violate any Intellectual Property infringe the rights of any third party with respect to intellectual property rights, and the Company has not received any written allegations to that effect.
(cii) To the Company’s Knowledge, no third party is currently misappropriatinghas asserted any claim or action against any of the Companies or any of their products (including against users of such products) alleging infringement of any intellectual property right. Conversely, infringing the Companies are unaware of the violation or otherwise violating infringement by any third party of any of the Intellectual Property Rights. Except within the normal course of business, the Companies have not granted to any third party, any option, license, pledge or other restrictions, user rights, or other rights whatsoever. whether or not for compensation, with respect to any of the Intellectual Property Rights, nor formed, directly or indirectly, any agreement with any third party in relation to the same. With respect to the normal course of business all of the Companies’ employment and/or subcontractor agreements contain the provisions necessary to ensure, to the fullest extent permitted by applicable laws, that all intellectual property rights on the work carried out by its employees and/or subcontractors as from the date of their hiring belong to the Companies. All the inventions made by any employees of either the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in Subsidiary have been realized within the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business scope of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation assignment of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))each concerned employees.
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Investment Agreement (Sequans Communications), Investment Agreement (Sequans Communications)
Intellectual Property. (a) Within ten (10Section 5.8(a) Business Days following of the date of this AgreementDisclosure Letter sets forth a true, the Company shall provide Parent with a correct complete and complete accurate list of all material Registered Intellectual Property and material unregistered trademarks owned by a member of the Company Group, including the jurisdiction where each item of such Registered Intellectual Property is registered or any Company Subsidiary that is filed, the subject of an application, certificate, filing, applicable patent or registration or other document issued by, filed with or recorded by any Governmental Authority number and application number and the record owner or domain name registrar registrant, and the legal owner (if different from the “Registered Intellectual Property”record owner), together with all material unregistered trademarks. To the Company’s Knowledge, all material All Registered Intellectual Property has been maintained effective as subsisting by the filing of all necessary filings, maintenance and renewals renewals, and timely payment of requisite fees, except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole.
(b) To A member of the Company Group owns all right, title and interest in, has a written license to use or otherwise has the right to use all material Company Intellectual Property. Each item of material Owned Intellectual Property is solely and exclusively owned by a member of the Company Group, free and clear of any Encumbrances other than Permitted Encumbrances. All material Owned Intellectual Property is subsisting and, to the knowledge of the Company, valid and enforceable.
(c) In the past three (3) years, neither (i) the ownership, use, patenting, registration, validity or enforceability of any material Owned Intellectual Property has been or is being challenged nor (ii) has any Person notified in writing a member of the Company Group that any of such Person’s KnowledgeIntellectual Property rights or rights of publicity have been or are infringed, misappropriated or otherwise violated by (x) a member of the Company Group (y) the conduct of the business of the Company Group or the products and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringeservices thereof, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to (z) that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights a member of the Company or Group requires a license to any Company Subsidiary.
of such Person’s Intellectual Property rights, except, in the case of both clauses (di) Except and (ii) above, as has not had, and would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, be materially adverse to the Company and Group, taken as a whole.
(d) Each Person who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any material Intellectual Property for or on behalf of, or under the supervision of, any member of the Company Subsidiaries own or are licensed Group has executed and delivered to usea member of the Company Group a valid and enforceable written contract providing for (i) the non-disclosure by such Person of all material trade secrets, or otherwise possess valid rights know-how, and confidential information of the Company Group and (ii) the assignment by such Person to use, a member of the Company Group of all Intellectual Property necessary authored, invented, created, improved, modified or developed by such Person in the course of their employment or other engagement with such member (“Created IP”); provided that such written contract is not required to conduct the business extent a member of the Company and Group owns the relevant Created IP by operation of law. Except as would not, individually or in the aggregate, be materially adverse to the Company Subsidiaries Group, taken as it is currently conducted; provideda whole, however, that each member of the foregoing representation Company Group has complied with all applicable Laws related to inventor compensation and warranty in this Section 4.21(d) shall not constitute has made all due payments to employees or be deemed or construed as any representation or warranty with respect other Persons who are entitled to infringement, misappropriation, or violation compensation under applicable Law for the development of any Owned Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(e) To the knowledge of the Company’s Knowledge, no Person is infringing upon, misappropriating or otherwise violating, or has in the past three (3) years infringed upon, misappropriated or otherwise violated, any Owned Intellectual Property, except in each case as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. The conduct of the business as conducted by the Company Group, including the use of the Owned Intellectual Property, does not infringe, misappropriate, or otherwise violate, and in the past three (3) years has not infringed, misappropriated, or otherwise violated, the Intellectual Property of any Person, except in each case as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole.
(f) The material Company IT Assets (i) operate and perform in all material respects as is necessary for the business of the Company Group as currently conducted and (ii) do not contain any material faults, Malicious Code or hardware components designed to permit unauthorized access to or to disable or otherwise harm any computer systems or software except, in the case of clause (i) and (ii), as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. The Company Group has, in all material respects, back-ups and disaster recovery arrangements in place for the Company IT Assets, and hardware and Software capacity, support, maintenance and trained personnel sufficient for the present conduct of the business of the members of the Company Group. In the past three (3) years, the Company Group has taken commercially reasonable actions to maintain all material licenses and service contracts, including the purchase of a sufficient number of license seats for all Software, with respect to the Company Subsidiaries IT Assets. In the past three (3) years, the Company IT Assets have not suffered any material failure that, individually or in the aggregate, was materially adverse to the Company Group, taken as a whole.
(g) The members of the Company Group have taken commercially reasonable measures actions in accordance with industry best practices to maintain and protect all material Company Intellectual Property, including actions to protect (i) the confidentiality of all trade secrets and any other material confidential information of the Company that is Owned Intellectual Property and the Company Subsidiaries (and ii) any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligationobligation except, in the case of clause (ii), as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. To the Company’s Knowledge, no No such trade secrets or other material confidential information has have been disclosed by a member of the Company or any Company Subsidiaries Group to any Person other than pursuant to a written confidentiality agreement restricting the disclosure and use of such trade secrets or any other material and confidential information by such Person, except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. No Person (including current and former founders, employees, contractors and consultants of the members of the Company Group) has any right, title or interest, directly or indirectly, in whole or in part, in any Owned Intellectual Property except as would not, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole. In the last three (3) years and to the knowledge of the Company, no Person is in violation of any confidentiality or assignment agreements that would be reasonably expected to, individually or in the aggregate, be materially adverse to the Company Group, taken as a whole.
(fh) All material Owned Software is operative for its intended purpose, free of any material defects, and does not contain any Malicious Code. No Person other than the members of the Company Group possesses a copy, in any form (print, electronic or otherwise), of any source code for any material Owned Software, and all such source code has been maintained as confidential except that would not be, individually or in the aggregate, materially adverse to the Company Group, taken as a whole. The IT Assets members of the Company Group have no obligation to afford any Person access to any such source code.
(i) are Except as would not, individually or in operating order in all material respects and are fulfilling the purposes for which they were acquiredaggregate, be materially adverse to the Company Group, taken as a whole, no member of the Company Group has distributed, licensed or established otherwise used any Publicly Available Software in an efficient any manner without material downtime that requires (or errorsupon a distribution, would require) any Owned Intellectual Property to be (i) disclosed or distributed in source code form, (ii) have notlicensed for the purpose of making derivative works, in the past three (3) years, experienced any material errors and/or breakdowns, or (iii) to distributed at no or minimal charge.
(j) The consummation of the Company’s Knowledge, do transactions contemplated hereby will not contain Unauthorized Code, (iv) to result in the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses loss or impairment of the Company and Group’s right to own any Owned Intellectual Property, or use any material Company Intellectual Property or material Company IT Assets, except as would not be, individually or in the aggregate, materially adverse to the Company Subsidiaries Group, taken as they are currently conducteda whole. Immediately subsequent to the Closing, the material Owned Intellectual Property, material Company Intellectual Property and material Company IT Assets will be owned or available for use by members of the Company Group on terms and conditions substantially similar to those under which the members of the Company Group own the material Owned Intellectual Property or use the material Company Intellectual Property and material Company IT Assets immediately prior to the Closing.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Sonoco Products Co), Equity Purchase Agreement (Sonoco Products Co)
Intellectual Property. (a) Within ten (10Schedule 4.13(a) Business Days following the date of this Agreement, the Company shall provide Parent with contains a correct and complete list of all Patents, Marks, Copyrights, and Internet domain names relating to Intellectual Property owned or filed by any Group Company (the “Registered IP”) together with a list of all material unregistered trademarks and copyrights owned by any Group Company (the Intellectual Property set forth on Schedule 4.13(a), together with the Company Software and all other material Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an applicationGroup Company, certificatecollectively, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Company Intellectual Property”), together including, with all material unregistered trademarks. To respect to the Company’s KnowledgeRegistered IP, the applicable jurisdictions of issuance, all material Registered of which are duly and validly subsisting. The Company or another Group Company is the sole and exclusive legal and beneficial owner of all right, title, and interest in and to the Company Intellectual Property, free and clear of Liens other than Permitted Liens. All of the Company Intellectual Property has been maintained effective by is valid, subsisting and enforceable. There are no filings or payments due to be made to a Governmental Authority within three (3) months from Closing to ensure that any of the filing Registered IP remains active and in good standing and without material risk of all necessary filings, maintenance and renewals and timely payment of requisite feesabandonment.
(b) To the Company’s KnowledgeSchedule 4.13(b) sets forth a complete list of all licenses, sublicenses and other agreements or permissions concerning Intellectual Property (i) used in or necessary to the conduct of the business of the Group Companies under which a Group Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate a licensee or otherwise violate is authorized to use any Intellectual Property rights other than the Company Intellectual Property (except for shrink-wrap licenses or other licenses for off-the-shelf Software with an annual license fee not exceeding $2,000), and (ii) owned by a Group Company that is used by any other Person (items (i) and (ii), collectively, “Licensed Intellectual Property;” such licenses, sublicenses, agreements or permissions, together with all amendments, modifications and supplements thereto, “IP Licenses”). The Company has delivered to Buyer true and complete copies of all IP Licenses. No Group Company is in breach of or in default (whether with or without the giving of notice, passage of time or both) under any IP Licenses or in respect of any third party and Licensed Intellectual Property, and, to the Company has not received Knowledge of the Company, no counterparty to any written allegations to that effectIP License is in breach or default (whether with or without the giving of notice, passage of time or both) under or in respect of any such IP License or Licensed Intellectual Property.
(c) To Schedule 4.13(c) sets forth a list of all proprietary Software that is owned or purported to be owned by any of the Group Companies (the “Company Software”). All right, title and interest in and to the Company Software is owned by a Group Company free and clear of all Liens other than Permitted Liens (excluding restrictions imposed by any license agreements disclosed on Schedule 4.13(b) with any Licensed Intellectual Property as described in subsection (ii) in such definition). The Company Software, and, to the Knowledge of the Company’s Knowledge, no third party the other Software used by any Group Company, is currently misappropriatingfree from and the Group Companies take commercially reasonable steps to ensure it remains free from any disabling codes or instructions and any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components that permit unauthorized access or the unauthorized disruption, infringing impairment, disablement or otherwise violating any Intellectual Property rights erasure of the such Company Software or any computer or system on which such Company SubsidiarySoftware is installed or connected to. The Group Companies are in possession of both the executable object code and source code versions of all Company Software, and all Company Software conforms in all respects to, and functions in accordance with applicable operating manuals, user manuals, training materials, formal specifications, and formal compatibility and configuration instructions relating to such software.
(d) Except as has not had, and would not reasonably be expected Each Group Company currently holds all required licenses to have, individually use any third party Software that is used in or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to the conduct of the business of the Group Companies, and is in compliance in all material respects with the requirements thereof, and such licenses will remain in full force and effect in accordance with their terms immediately following the Closing. No Group Company and has used, modified or distributed any Publicly Available Software in a manner that requires any Company Software to be: (i) disclosed or distributed in source code form, (ii) licensed for the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(dpurpose of making derivative works or (iii) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))redistributed at no charge.
(e) No written claim has been brought or made against any Group Company: (i) alleging that their use of any Intellectual Property infringes on or misappropriates the Intellectual Property of, or otherwise violates the rights of, another Person, including any request that they take a license under or pay any consideration in respect of any Intellectual Property of another Person; (ii) challenging the ownership, right to use or validity of the Company Intellectual Property or the right to use or validity of any Licensed Intellectual Property; or (iii) opposing or attempting to cancel such Group Company’s rights in any Intellectual Property. No Action is pending, or to the Knowledge of the Company, threatened, against or involving any Group Company with respect to any Intellectual Property. To the Knowledge of the Company, no Person is infringing upon, misappropriating or otherwise violating the rights of any Group Company in the Company Intellectual Property or other Intellectual Property owned by any Group Company. The conduct of the business of the Group Companies, including use of the Company Intellectual Property in connection therewith, has not infringed, misappropriated, or otherwise violated and does not infringe, misappropriate, or otherwise violate the Intellectual Property or other rights of any Person.
(f) No current or former employee or contractor of any Group Company has any right to payment with respect to the Group Companies’ use of any Company Intellectual Property, or any right of ownership with respect to any Company Intellectual Property. Each current or former employee or contractor of any Group Company that has contributed to the conception or development of any Company Intellectual Property and any other Intellectual Property used by the Group Companies has executed a valid and binding agreement assigning all rights in such Company Intellectual Property to a Group Company, which agreement is valid and binding against the applicable Group Company and, to the Company’s Knowledge, the other party thereto, and has irrevocably waived in writing any non-assignable rights (including moral rights) that such Person may possess with respect to such Company and the Intellectual Property.
(g) Each Group Company Subsidiaries have has taken commercially reasonable measures to protect the confidentiality of all trade secrets their Company Intellectual Property and any other material proprietary information, including Trade Secrets, the value of which is contingent upon maintaining the confidentiality thereof, and of third party confidential information provided to any Group Company under an obligation of the confidentiality. No Company and the Company Subsidiaries (and any confidential information owned Intellectual Property constituting a Trade Secret or Confidential Information has been authorized to be disclosed or has been disclosed by any Person Group Company other than pursuant to whom a binding and enforceable nondisclosure agreement or other obligation of confidentiality restricting the Company or any of the Company Subsidiaries has a confidentiality obligation)disclosure and use thereof. To the Company’s Knowledge, no Person has breached any such trade secrets nondisclosure agreement or other material confidential information has been disclosed by the Company or any Company Subsidiaries obligation of confidentiality to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonGroup Company.
(fh) The IT Assets (i) are in operating order in Company Intellectual Property, together with the other Intellectual Property owned by the Group Companies and the Licensed Intellectual Property, includes all material respects and are fulfilling of the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, Intellectual Property used in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct operation of the businesses of the Group Companies as currently conducted.
(i) The Group Companies’ data, privacy and security practices conform to all of the Privacy Commitments, applicable privacy Laws and privacy Contracts to which any Group Company is a party. Each Group Company has at all times: (i) provided adequate notice and obtained any necessary consents from end users required for the processing of personal data as conducted by or for such Group Company and (ii) abided by any privacy choices (including opt-out preferences) of end users relating to personal data (such obligations along with those contained in the Company Subsidiaries as Group Companies’ privacy policies, collectively, “Privacy Commitments”). None of (A) the execution, delivery and performance of this Agreement or (B) the use by Buyer of any of the Group Companies’ databases or data or other information relating to the Business’ customers in the same manner in which they are currently conductedused by the Group Companies will cause, constitute, or result in a breach or violation of any privacy Laws or Privacy Commitments, any Contracts to which any Group Company is a party or standard terms of service entered into by users of the Group Companies’ websites.
(j) Each Group Company has established and maintains appropriate technical, physical and organizational measures and security systems and technologies in compliance with privacy Laws and Privacy Commitments that are designed to protect its data against accidental or unlawful processing in a manner reasonable and appropriate to the risks represented by the processing of such data by the Group Companies and its data processors. There has been no breach, security incident or violation of any data security policy in relation to the any Group Company’s data has occurred, and there has been no unauthorized or illegal processing of any such data such that: (i) privacy Laws would require any Group Company to notify a Governmental Authority of a data security breach or security incident or (ii) applicable guidance or codes of practice promulgated under privacy Laws would recommend any Group Company to notify a Governmental Authority of a data security breach.
Appears in 2 contracts
Samples: Unit Purchase Agreement (LendingTree, Inc.), Unit Purchase Agreement (LendingTree, Inc.)
Intellectual Property. (a) Within ten (10) Business Days following the date Section 3.19 of this Agreement, the Company shall provide Parent with Disclosure Schedule contains a correct and complete list of all Company Registered Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with and all material unregistered trademarks. To copyrights, trademarks and service marks of the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of no Intellectual Property owned by the Company and no Company Proprietary Software is subject to any proceeding or outstanding consent, decree, order or judgment (i) restricting in any manner the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of use thereof by the Company or any Company Subsidiary.
(dii) Except as has not had, and would not reasonably be expected to have, individually that may affect the validity or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation)enforceability thereof. To the Company’s Knowledge, no such trade secrets Intellectual Property licensed to the Company and no Company Licensed Software, either of which is material to the operations of the Company, is subject to any proceeding or outstanding consent, decree, order or judgment (i) restricting in any manner the use thereof by the Company or (ii) that may affect the validity or enforceability thereof.
(c) Each item of Company Registered Intellectual Property is subsisting and in full force in all material respects in accordance with its terms. All necessary registration, maintenance and renewal fees currently due and owing in connection with Company Registered Intellectual Property have been paid and all necessary documents, recordations and certifications in connection with the Company Registered Intellectual Property have been filed with the relevant patent, copyright, trademark or other material confidential information has been disclosed authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Company Registered Intellectual Property and recording ownership by the Company or any of its Subsidiaries of such Company Subsidiaries to any Person Registered Intellectual Property.
(d) To the Knowledge of the Company, the Company is the sole and exclusive owner of each item of Intellectual Property used by the Company, other than pursuant Intellectual Property that is licensed to the Company, free and clear of any lien, except Permitted Liens.
(e) Section 3.19 of the Company Disclosure Schedule sets forth a written agreement restricting correct and complete list of (i) the disclosure Company Proprietary Software, and use of such trade secrets or any other material confidential information by such Person(ii) the Company Licensed Software.
(f) To the Knowledge of the Company, the operations of the Company as currently conducted, including the Company’s design, development, manufacture, use, reproduction, display, marketing and sale of the products or services (including Software) of the Company do not infringe or misappropriate the Intellectual Property of any third party.
(g) The IT Assets Company has no Knowledge and has not received during the past six years written notice from any third party that the operations of the Company as currently conducted, or any current product or service of the Company infringes or misappropriates the Intellectual Property of any third party.
(h) To the Knowledge of the Company, no Person is infringing or misappropriating any Company Intellectual Property that is owned by or exclusively licensed to the Company.
(i) are in operating order in all material respects and are fulfilling The Company has taken commercially reasonable steps to protect the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, rights of the Company in the past three (3) years, experienced Confidential Information and any material errors and/or breakdowns, (iii) to trade secret or confidential information of third parties used by the Company’s Knowledge, do not contain Unauthorized Code, .
(ivj) The Company maintains in place and has taken commercially reasonable steps to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered enforce appropriate policies designed to ensure that all Intellectual Property owned by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses and developed by employees of the Company and is developed by such employees while working within the scope of their employment at the time of such development. Where appropriate, the Company Subsidiaries has taken commercially reasonable steps to require its agents, consultants, contractors or other Persons to execute appropriate instruments of assignment in favor of the Company as they are currently conductedassignee to convey to the Company ownership of Intellectual Property developed by such agents, consultants, contractors or other Persons on behalf of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Unify Corp), Merger Agreement (Warp Technology Holdings Inc)
Intellectual Property. (a) Within ten (10Section 3.15(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Letter sets forth a correct true and complete list of all Intellectual Property owned by or exclusively licensed to the Company (or non-exclusively licensed to the Company and material to the conduct of the Company’s business as currently conducted) and which, in each case, is registered or subject to an application for issuance of a patent or registration in any Company Subsidiary that is jurisdiction throughout the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar world (the “Company Registered Intellectual Property”), together with the name of the current owner(s) (including joint owners), the applicable jurisdictions, the application or registration numbers and the date of application and issuance or registration. Except as otherwise indicated in Section 3.15(a) of the Disclosure Letter, the Company is the exclusive owner of all material unregistered trademarksCompany Registered Intellectual Property. To Without limiting the foregoing, to the Knowledge of the Company’s Knowledge, all material each Person who is or was an employee or contractor (individually or as a contracting entity) of the Company and who is or was involved in the creation or development of any Company Registered Intellectual Property for or on behalf of the Company has been maintained effective by executed a valid, enforceable agreement containing an assignment to the filing Company of all necessary filingsof such employee’s rights (and (x) in the case of an individual contractor, maintenance of all such contractor’s rights, and renewals and timely payment (y) in the case of requisite feesa contracting entity, all of such contracting entity’s rights) to such Company Registered Intellectual Property.
(b) The Company is the sole and exclusive or joint owner of or has a valid and legally enforceable license to use, in each case, free and clear of any Liens other than Permitted Liens, all Company Registered Intellectual Property.
(c) To the Knowledge of the Company’s Knowledge, and except as set forth in Section 3.18(a) of the Disclosure Letter as expired, lapsed or abandoned, all Company Registered Intellectual Property is subsisting and, with respect to issued patents and registered trademarks within the Company Registered Intellectual Property, is valid and enforceable. To the knowledge of the Company, all maintenance and renewal fees having non-extendible due dates for payment prior to the date of this Agreement and that are necessary to preserve the material rights of the Company in connection with the Company Registered Intellectual Property listed in Section 3.15(a) of the Disclosure Letter have been paid.
(d) To the Knowledge of Company, no third party which is not the U.S. Patent and Trademark Office or any foreign governmental administrative agency for patent and/or trademark matters (the “Governmental Patent Authority”) is overtly challenging in writing the right, title or interest of any of the Company or any licensor of the Company in, to or under the Company Registered Intellectual Property, or the validity, enforceability or claim construction of any patents within the Company Registered Intellectual Property. To the Knowledge of the Company, there is no post-grant proceeding, interference, reissue, reexamination, post-grant review, inter partes reexamination, supplemental examination, opposition, revocation, cancellation, proceeding, or objection, in each case initiated by a third party other than a Governmental Patent Authority, pending with regard to any Company Registered Intellectual Property. To the Knowledge of the Company, none of the Company Registered Intellectual Property is subject to any outstanding order of, judgment of, decree of or agreement with any Governmental Entity other than a Governmental Patent Authority that limits the ability of the Company to exploit any Company Registered Intellectual Property.
(e) Except for matters that have not resulted and would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, and to the Knowledge of the Company, the conduct operation of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, violate or misappropriate or otherwise violate any the Intellectual Property rights of any third party and party. Since January 1, 2015, the Company has not received any written allegations to notice from any third party alleging that effectthe operation of the business of the Company as currently conducted infringes, violates or misappropriates the Intellectual Property of such third party.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(df) Except as has resulted or would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, to the Knowledge of the Company, no third party, including any employee or former employee of the Company, is infringing, violating or misappropriating any of the Intellectual Property of the Company.
(g) Except for matters that have not had, resulted and would not reasonably be expected to haveresult, individually or in the aggregate, in a Company Material Adverse Effect, to the Knowledge of the Company, no funding, facilities or personnel of any Governmental Entity or any university, college, research institute or other educational institution have been or are being used, directly or indirectly, to develop or create, in whole or in part, any Company IP, except for any such funding or use of facilities or personnel that does not result in such Governmental Entity or institution obtaining ownership or use rights to such Company IP, or require or obligate the Company and to grant or offer to any Governmental Entity or institution any license or right to such Company IP or require the Company Subsidiaries own to reimburse or are licensed to use, repay any grant under any contingent or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))non-contingent payment obligations.
(eh) The Company has taken reasonable commercial efforts to maintain the confidentiality of and otherwise protect and enforce its rights in all proprietary information held by the Company, or purported to be held by the Company in its public filings or by officers of the Company, as a trade secret, the value of which is contingent upon maintaining the confidentiality thereof.
(i) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information Knowledge of the Company, (i) no individual involved in the creation, discovery, or development of any Company and the Company Subsidiaries (and any confidential information IP owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed purported to be owned by the Company in its public filings or by officers of the Company, is entitled to make any claim for the benefit of that individual to: (A) any right, title or interest in such Company Subsidiaries IP; or (B) any compensation or remuneration in relation to any Person other than pursuant to a written agreement restricting the disclosure and use exploitation of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquiredCompany IP, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.and
Appears in 2 contracts
Samples: Merger Agreement (Roche Holding LTD), Merger Agreement (Ignyta, Inc.)
Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the The conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned the Software, does not, to be conducted does not infringethe knowledge of the Company, infringe upon or misappropriate or otherwise violate any Intellectual Property rights of any third party and party. No claim has been asserted to the Company has not received or any written allegations to Company Subsidiary that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights conduct of the business of the Company or any Company Subsidiary.
(d) Except Subsidiary as has not had, currently conducted or the Software infringes upon or may infringe upon or misappropriates the Intellectual Property rights of any third party. With respect to each item of Intellectual Property and would not reasonably be expected to have, individually each component of Software owned by the Company or in the aggregate, a Company Material Adverse EffectSubsidiary (“Company Owned Intellectual Property”), the Company or a Company Subsidiary is the owner of the entire right, title and interest in and to such Company Owned Intellectual Property and is entitled to use such Company Owned Intellectual Property, including to modify or improve same or to create derivative works therefrom, in the continued operation of its respective business. With respect to each item of software or Intellectual Property licensed to the Company Subsidiaries own or are licensed a Company Subsidiary (“Company Licensed Intellectual Property”), subject to usethe applicable terms of such licenses, the Company or otherwise possess valid rights a Company Subsidiary has the right to use, all use such software or Company Licensed Intellectual Property necessary to conduct in the continued operation of its respective business in accordance with the manner in which the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any . The Company Owned Intellectual Property has not, to the knowledge of the Company, been adjudged or alleged to be invalid or unenforceable in whole or in part. Subject to bankruptcy, insolvency, reorganization, moratorium and other applicable Law relating to or affecting creditors rights (which generally and to general principles of equity relating to the availability of specific performance and injunctive or other forms of equitable relief, each license of software and the Company Licensed Intellectual Property is addressed enforceable and is in Section 4.21(b) full force and Section 4.21(c))effect, and will continue to be in full force and effect at the Effective Time. To the knowledge of the Company, no party to any license of the Company Licensed Intellectual Property is in breach thereof or default thereunder.
b) Section 3.15(b) of the Company Disclosure Schedule sets forth a true and complete list of all (ei) To patents and patent applications, registered trademarks and trademark applications, registered copyrights and copyright applications, industrial designs and Software included in the Company Owned Intellectual Property, (ii) licenses that are material to the Company’s Knowledgebusiness, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality (iii) general descriptions of all trade secrets and any other material confidential information intellectual property used in the business of the Company and the Company Subsidiaries Subsidiaries. Section 3.15(b) of the Company Disclosure Schedule also sets forth a complete list of all of the Software used in the business of the Company and the Company Subsidiaries.
c) The Company and each Company Subsidiary has entered into confidentiality agreements with respect to disclosures of its trade secrets and its other confidential Intellectual Property, and (i) to the knowledge of the Company, there has been no misappropriation of any Software or other Company Owned Intellectual Property by any Person, (ii) to the knowledge of the Company, no employee, independent contractor or agent of the Company or any Company Subsidiary has misappropriated any Intellectual Property of any other Person in the course of such performance as an employee, independent contractor or agent, and (iii) to the knowledge of the Company, no employee, independent contractor or agent of the Company or any confidential information owned Company Subsidiary is in default or breach of any term of any employment agreement, non-disclosure agreement, assignment of invention agreement or similar agreement or contract relating in any way to the protection, ownership, development, use or transfer of Intellectual Property in the course of such performance as an employee, independent contractor or agent.
d) Except as set forth in Section 3.15(d) of the Company Disclosure Schedule, to the knowledge of the Company, there is no alleged or actual infringement by any Person of any Company Owned Intellectual Property or Company Licensed Intellectual Property. There is no action, suit, proceeding or claim outstanding or, to whom the knowledge of the Company, threatened by others, challenging the validity or scope of any Company Owned Intellectual Property. There is no action, suit, proceeding or claim outstanding or, to the Knowledge of the Company, threatened by others, challenging the validity or scope of any Company Licensed Intellectual Property. To the knowledge of the Company, there is no fact which could form a reasonable basis for any such claim with respect to any Company Owned Intellectual Property or Company Licensed Intellectual Property.
e) Neither the Company nor any of the Company Subsidiaries has failed to maintain any application or registration, or comply with any contract or Order which would prevent it from owning, using or commercializing any Company Owned Intellectual Property currently used or commercialized by any of them in the conduct of the business of the Company and the Company Subsidiaries.
f) To the knowledge of the Company, there are no third party patents or patent applications that contain claims or trademarks or trademark applications that infringe the issued or pending claims of any of the Company Owned Intellectual Property or Company Licensed Intellectual Property.
g) Except as disclosed in Section 3.15(g) of the Company Disclosure Schedule, neither the Company nor any of its Company Subsidiaries pays or receives any royalty to or from any Person with respect to the Company Owned Intellectual Property, nor has the Company or any of the Company Subsidiaries licensed any Person to use any Company Owned Intellectual Property.
h) The Transactions will not cause a default under, or breach of, any rights of the Company or of any of the Company Subsidiaries in and to the Company Owned Intellectual Property or the Company Licensed Intellectual Property.
i) Neither the Company nor any of the Company Subsidiaries is subject to any judgment with respect to, nor has it entered into or is it a confidentiality obligationparty to any contract which restricts or impairs the use of, any Company Owned Intellectual Property.
j) Neither the Company nor any of the Company Subsidiaries has entered into any consent, indemnification, (except for indemnification provisions contained in agreements with customers). To , forbearance to xxx or settlement agreement with respect to the Company Owned Intellectual Property or Company Licensed Intellectual Property.
k) The Company and each of the Company Subsidiaries has obtained intellectual property assignments from employees and contractors as are necessary to establish and preserve, for the benefit of the Company and each of the Company Subsidiaries, all Company Owned Intellectual Property and Company Licensed Intellectual Property.
l) Except as set forth in Section 3.15(l) of the Company Disclosure Schedule, to the knowledge of the Company’s Knowledge, no such trade secrets open source or other material confidential information has been disclosed public library software, including, but not limited to, any version of any software licensed pursuant to any GNU public license, was used in the development or modification of any software owned by the Company or any the Company Subsidiaries to that is incorporated into or utilized by any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses products of the Company and the Company Subsidiaries where, as they are currently conducteda result of the use of such open source or public library software, the Company or any of the Company Subsidiaries is obligated to make available to third parties other than its customers the source code for the Software that is incorporated into such products.
m) Neither the Company nor any of the Company Subsidiaries have in the last three years (i) transferred ownership of, (ii) except as set forth in Section 3.15(m) of the Company Disclosure Schedule, granted any exclusive license of or right to use, (iii) authorized the retention of any exclusive rights to use or contingent right to use (including pursuant to a source code escrow), (iv) except as set forth in Section 3.15(m)) of the Company Disclosure Schedule, authorized joint ownership of or (v) except as set forth in Section 3.15(m) of the Company Disclosure Schedule, granted any lien, security interest, claim, encumbrance or any other restriction or limitation whatsoever in any or all Company Owned Intellectual Property or Software. Neither the Company nor any of the Company Subsidiaries has granted any third party an exclusive license or right to use any patents owned by the Company or any of the Company Subsidiaries.
Appears in 2 contracts
Samples: Arrangement Agreement (Acorn Energy, Inc.), Arrangement Agreement (Acorn Energy, Inc.)
Intellectual Property. (a) Within ten (10Section 4.21(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Liberty Property Limited Partnership), Merger Agreement (Prologis, L.P.)
Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge's knowledge, the conduct of Company and the Subsidiary own, or are licensed or otherwise possess legally enforceable rights to use all patents, trademarks, trade names, service marks, copyrights, and any applications therefor, maskworks, net lists, schematics, technology, know-how, trade secrets, inventory, ideas, algorithms, processes, computer software programs or applications (in both source code and object code form), and tangible or intangible proprietary information or material ("COMPANY INTELLECTUAL PROPERTY") that are used in the business of the Company and the Subsidiary as currently conducted, except to the extent that the failure to have such rights have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(b) Section 4.14 of the Company Subsidiaries as it is currently conducted Disclosure Schedule lists (i) all patents and planned to be conducted does not infringepatent applications and all registered and unregistered trademarks, misappropriate or otherwise violate any trade names and service marks, registered and unregistered copyrights, and maskworks, included in the Company Intellectual Property, including the jurisdictions in which each such Company Intellectual Property rights of right has been issued or registered or in which any application for such issuance and registration has been filed, (ii) all licenses, sublicenses and other agreements as to which the Company is a party and pursuant to which any person is authorized to use any Company Intellectual Property, and (iii) all licenses, sublicenses and other agreements as to which the Company is a party and pursuant to which the Company is authorized to use any third party and the patents, trademarks or copyrights, including software ("THIRD PARTY INTELLECTUAL PROPERTY") which are incorporated in, are, or form a part of any Company has not received any written allegations to that effectproduct.
(c) To the Company’s Knowledge's knowledge, there is no third party is currently misappropriatingunauthorized use, infringing disclosure, infringement or otherwise violating misappropriation of any Company Intellectual Property rights rights, any trade secret material to the Company or of the Subsidiary, by any third party, including any employee or former employee of the Company or any of its subsidiaries. To the Company's knowledge, there is no unauthorized use, disclosure, infringement or misappropriation by the Company or the Subsidiary of any Third Party Intellectual Property right to the extent licensed by or through the Company or the Subsidiary. Except as set forth in Section 4.14(c) of the Company Disclosure Schedule, neither the Company nor the Subsidiary has entered into any agreement to indemnify any other person against any charge of infringement of any Third Party Intellectual Property, other than indemnification provisions contained in sales agreements arising in the ordinary course of business. Except as set forth in Section 4.14 of the Company Disclosure Schedule, there are no royalties, fees or other payments payable by the Company to any Person by reason of the ownership, use, sale or disposition of Third Party Intellectual Property.
(d) Except as has not had, and would not reasonably be expected to have, individually or set forth in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business Section 4.14 of the Company and Disclosure Schedule, neither the Company Subsidiaries nor the Subsidiary is nor will any of such party be as it is currently conducted; provideda result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation breach of any license, sublicense or other agreement relating to the Third Party Intellectual Property rights (or Third Party Intellectual Property rights, the breach of which is addressed in Section 4.21(b) and Section 4.21(c))would have a Material Adverse Effect on the Company.
(e) To the Company’s Knowledge's knowledge, the Company all patents, registered trademarks, service marks and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed copyrights held by the Company or the Subsidiary are valid and subsisting. Except as set forth in Section 4.14 of the Company Disclosure Schedule, neither the Company nor the Subsidiary (i) has been sued in any suit, action or proceeding which involves a claim of infringement of any patents, trademarks, service marks, copyrights or violation of any trade secret or other propriety right of any third party; (ii) has knowledge that the manufacturing, marketing, licensing or sale of its products infringes any patent, trademark, service mark, copyright, trade secret or other proprietary right of any third party; and (iii) has brought any action, suit or proceeding for infringement of Company Subsidiaries to or Third Party Intellectual Property or breach of any Person other than pursuant to a written license or agreement restricting the disclosure and use of such trade secrets involving Company or Third Party Intellectual Property against any other material confidential information by such Personthird party.
(f) The IT Assets (i) are in operating order in Section 4.14 of the Company Disclosure Schedule sets forth a list of all material respects officers, employees and are fulfilling consultants of the purposes for which they were acquired, licensed Company or established in an efficient manner without material downtime or errors, (ii) the Subsidiary who have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) executed and delivered to the Company’s Knowledge, do not contain Unauthorized Code, (iv) Company an agreement regarding the protection of proprietary information and the assignment to the Company’s KnowledgeCompany of all Company Intellectual Property arising from services performed for the Company by such persons.
(g) Except as set forth in Section 4.14 of the Company Disclosure Schedule, have not experienced any material security breachesall use, and (v) are considered disclosure or appropriation by the Company or the Subsidiary of the Company or Third Party Intellectual Property not otherwise protected by patents, patent applications or copyright (such information as it relates to effectively performeither the Company or Intracel Parent, "Confidential Information"), has been pursuant to the terms of a written agreement between the Company and such third party or is otherwise lawful. Except as set forth in all material respectsSection 4.14 of the Company Disclosure Schedule, all information technology operations necessary use, disclosure or appropriation by the Company or the Subsidiary of Confidential Information not owned by the Company has been pursuant to conduct the businesses terms of a written agreement between the Company and the Company Subsidiaries as they are currently conductedowner of such Confidential Information, or is otherwise lawful.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Intracel Corp), Agreement and Plan of Reorganization (Intracel Corp)
Intellectual Property. (a) Within ten The Company and/or each of its subsidiaries owns, or is licensed or otherwise possesses legally enforceable rights to use, all patents, trade secrets, trademarks, trade names, service marks, copyrights, and any applications therefor, technology, know-how, computer software programs or applications, and tangible or intangible proprietary information or material that are used in the business of the Company and its subsidiaries as currently conducted, except as would not reasonably be expected to have a material adverse effect on the Company.
(10b) Business Days following Except as disclosed in Section 4.27(b) of the date Company Disclosure Schedule or the Company SEC Documents or as would not reasonably be expected to have a material adverse effect on the Company: (i) the Company is not, nor will it be as a result of the execution and delivery of this AgreementAgreement or the performance of its obligations hereunder, in violation of any licenses, sublicenses and other agreements as to which the Company shall provide Parent with is a correct party and complete list of all pursuant to which the Company is authorized to use any third-party patents, trademarks, service marks and copyrights ("Third-Party Intellectual Property Rights"); (ii) no claims with respect to the patents, registered and material unregistered trademarks and service marks, registered copyrights, trade names and any applications therefor owned by the Company or any of its subsidiaries (the "Company Subsidiary that is Intellectual Property Rights"), any trade secret material to the subject Company, or Third Party Intellectual Property Rights to the extent arising out of an applicationany use, certificatereproduction or distribution of such Third Party Intellectual Property Rights by or through the Company or any of its subsidiaries, filingare currently pending or, registration or other document issued byto the knowledge of the Company, filed with or recorded are overtly threatened by any Governmental Authority person; and (iii) the Company does not know of any valid grounds for any bona fide claims (A) to the effect that the manufacture, sale, licensing or domain name registrar (the “Registered Intellectual Property”)use of any product as now used, together with all material unregistered trademarks. To the Company’s Knowledgesold or licensed or proposed for use, all material Registered Intellectual Property has been maintained effective sale or license by the filing Company or any of all necessary filingsits subsidiaries infringes on any copyright, maintenance patent, trademark, service marks or trade secret; (B) against the use by the Company or any of its subsidiaries of any trademarks, trade names, trade secrets, copyrights, patents, technology, know-how or computer software programs and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of applications used in the business of the Company and or any of its subsidiaries as currently conducted or as proposed to be conducted; (C) challenging the ownership, validity or effectiveness of any part of the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights Rights or other trade secret material to the Company; or (D) challenging the license or legally enforceable right to use of any third party and the Third Party Intellectual Rights by the Company has not received or any written allegations to that effectof its subsidiaries.
(c) To the Company’s Knowledge's knowledge, all material patents, registered trademarks and copyrights held by the Company are valid and subsisting. Except as set forth in Section 4.27(c) of the Company Disclosure Schedule or the Company SEC Documents, to the Company's knowledge, there is no third party is currently misappropriatingmaterial unauthorized use, infringing infringement or otherwise violating misappropriation of any of the Company Intellectual Property rights by any third party, including any employee or former employee of the Company or any Company Subsidiaryof its subsidiaries.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Belmont Homes Inc), Merger Agreement (Cavalier Homes Inc)
Intellectual Property. (a) Within ten (10Section 3.16(a)(i) Business Days following the date of this Agreement, the Company shall provide Parent with a correct Disclosure Letter lists all issued patents, registered trademarks and complete list of all Intellectual Property registered domain names and pending applications for patents and trademarks owned by (as opposed to licensed to) the Company or any Company Subsidiary that is the subject of an application(together with all registered copyrights and applications for copyright registrations, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Company Registered Intellectual Property”), . Section 3.16(a)(ii) of the Company Disclosure Letter lists all material agreements (“Material Inbound IP Agreements”) pursuant to which the Company or any Company Subsidiary has received a license or sub-license or is granted other rights with respect to any material item of Intellectual Property (excluding any commercial off-the-shelf software products with annual fees of less than $15,000 per user); and Section 3.16(a)(iii) of the Company Disclosure Letter lists all material agreements (“Material Outbound IP Agreements”; together with all the Material Inbound IP Agreement, the “Material IP Agreements”) pursuant to which the Company or any Company Subsidiary has licensed to any third parties the right to use or granted any third parties any other rights with respect to any material unregistered trademarks. To the Company’s Knowledge, all material Registered item of Intellectual Property has been maintained effective by (other than non-exclusive distributor, reseller, dealer and customer agreements entered into in the filing ordinary course of all necessary filings, maintenance and renewals and timely payment of requisite feesbusiness).
(b) To Except as set forth in Section 3.16(b) of the Company’s KnowledgeCompany Disclosure Letter, (i) the conduct Company or the Company Subsidiaries exclusively own, free of all Liens (other than Permitted Liens), and known adverse interests or claims, all Company Registered Intellectual Property and own or have the right to use all Intellectual Property necessary for the operation of the business of the Company and the Company Subsidiaries as it conducted as of the Closing Date; (ii) to the knowledge of the Company, no person is currently conducted and planned to be conducted does not infringe, misappropriate infringing or otherwise violate misappropriating any Intellectual Property rights material items of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledgeor the Company Subsidiaries’ proprietary Intellectual Property, no third party is currently misappropriating, infringing or otherwise violating such that the occurrence of any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as foregoing has not had, and would not reasonably be expected to have, individually or in the aggregate, had a Company Material Adverse Effect; (iii) to the knowledge of the Company, none of the material items of the Company’s or the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Subsidiaries’ proprietary Intellectual Property necessary to conduct for the operation of the business of the Company and the Company Subsidiaries as it conducted as of the Closing Date has been misappropriated by the Company or any Company Subsidiary; (iv) to the knowledge of the Company, all patents, registered trademarks and registered copyrights owned by the Company or any Company Subsidiary are valid and subsisting; (v) all of the Material IP Agreements are valid and binding agreements on the Company; (vi) neither the Company nor any Company Subsidiary is currently conductedin material default under any Material Inbound IP Agreement; provided(vii) to the knowledge of the Company, howeverno third party is in material default under any Material Outbound IP Agreement; (viii) to the knowledge of the Company, there is no proceeding pending that challenges the foregoing representation and warranty in this Section 4.21(d) shall not constitute legality, validity, enforceability or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation ownership of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To material items of the Company’s Knowledgeor the Company Subsidiaries’ proprietary Intellectual Property; (ix) all persons who created, invented or contributed to the Company Registered Intellectual Property or other material proprietary Intellectual Property of the Company and/or the Company Subsidiaries have assigned to the Company in writing all of their rights in same that do not vest initially in the Company and/or the Company Subsidiaries by operation of law; (x) no other person has the current or contingent right to access or possess any material proprietary source code of the Company or the Company Subsidiaries; (xi) to the knowledge of the Company, the Company and the Company Subsidiaries Subsidiaries’ conduct of their businesses as currently conducted does not materially infringe the Intellectual Property rights of any person; and (xii) the Company and each Company Subsidiary have taken commercially steps that are customary and reasonable measures in their industry to protect and preserve (A) the confidentiality of all trade secrets and any other material confidential information Confidential Information of the Company and the Company Subsidiaries and (B) the security and continuous operation of their material software, networks, websites and systems (and any confidential information owned by any Person the data therein), except to whom the extent that the failure to take such steps has not had a Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonMaterial Adverse Effect.
(fc) The IT Assets For purposes of this Agreement, “Intellectual Property” means (iA) are in operating order in all material respects patents and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errorspatent applications, (iiB) have nottrademarks, service marks and trade names, together with any registrations and applications in the past three (3) years, experienced any material errors and/or breakdownsconnection therewith, (iiiC) to the Company’s Knowledgecopyrights, do not contain Unauthorized Codecopyrighted works and any registrations and applications in connection therewith, (ivD) to the Company’s Knowledge, have not experienced any material security breaches, trade secrets and (vE) are considered by the Company registered rights to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducteduse web site domain names.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nielsen Holdings N.V.), Merger Agreement (Arbitron Inc)
Intellectual Property. (a) Within ten (10Section 3.17(a) Business Days following of the Company Disclosure Letter sets forth a complete and correct list, as of the date hereof, of this Agreement, the Company shall provide Parent with a correct and complete list of all Owned Intellectual Property owned that is registered, issued or subject to an application for registration or issuance that is maintained by the Company or any Company Subsidiary that is the subject of an application(collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Knowledge of the Company’s Knowledge, all material the Registered Intellectual Property has been maintained effective by used in the filing conduct of the business is valid, subsisting and enforceable, and the Company and its Subsidiaries exclusively own the Owned Intellectual Property material to the business of the Company and its Subsidiaries, free and clear of all necessary filingsLiens, maintenance and renewals and timely payment of requisite feesexcept for Permitted Liens.
(b) The conduct of the business of the Company and its Subsidiaries has not, since January 1, 2019, infringed, violated or misappropriated any Intellectual Property of any other Person in any material respect. There is no pending or, to the Knowledge of the Company, threatened Proceeding against the Company or any of its Subsidiaries alleging any such infringement, violation or misappropriation (including any claim that the Company or any of its Subsidiaries must license or refrain from using any Intellectual Property of any Person) or contesting the ownership, validity, registrability, use or enforceability of any Registered Intellectual Property (excluding ordinary course proceedings in Intellectual Property registration offices of Governmental Authorities). To the Knowledge of the Company’s Knowledge, no Person has engaged in any activity that infringes, violates or misappropriates any material Registered Intellectual Property since January 1, 2019.
(c) The Company and its Subsidiaries have taken commercially reasonable actions to protect and maintain the (i) Registered Intellectual Property and (ii) secrecy of the Trade Secrets and confidential Intellectual Property, in each case, that are Owned Intellectual Property. To the knowledge of the Company, no material Trade Secrets or confidential Owned Intellectual Property has been disclosed by the Company or any of its Subsidiaries to any Person except to Persons under a legal, contractual or enforceable ethical obligation to maintain the confidentiality of such Trade Secrets and confidential information. To the Knowledge of the Company, there has been no unauthorized access, use or disclosure of any material Trade Secrets or confidential Owned Intellectual Property since January 1, 2019.
(d) To the extent that any material Owned Intellectual Property has been conceived, developed or created for the Company or any of its Subsidiaries by any Person (whether alone or with others), (i) such Person has executed a valid and enforceable written agreement pursuant to which such Person transferred to the Company or such Subsidiary the entire and unencumbered right, title and interest of such Person therein and thereto, and, to the Knowledge of the Company, no party is in breach of such agreement or (ii) the Company or its Subsidiaries exclusively own such Intellectual Property as a matter of applicable Law. No Person has asserted in writing against the Company or any of its Subsidiaries any right, title, interest or other claim in, or the right to receive royalties or other consideration with respect to, any material Owned Intellectual Property.
(e) The IT Systems material to the business of the Company and its Subsidiaries (i) operate in all material respects in accordance with their documentation and functional specifications and as otherwise required by the Company and its Subsidiaries, (ii) are in a good state of maintenance and repair (ordinary wear and tear excepted) and are adequate and suitable for the purposes for which they are presently being used or held for use, and (iii) since January 1, 2019, have not malfunctioned or failed in a manner that resulted in a material disruption to the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectits Subsidiaries.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Domtar CORP), Merger Agreement (Resolute Forest Products Inc.)
Intellectual Property. (a) Within ten Schedule 4.14(a) contains the following:
(101) Business Days following the date of this Agreement, a complete and accurate list and description for the Company shall provide Parent with a correct of (i) all of its Patents, Marks and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of Copyrights for which an application, certificate, filing, registration or other document issued by, application has been filed with or recorded a registration issued by any a Governmental Authority or domain name registrar Authority, (ii) all of its other Patents and Marks and (iii) all of the Software that it owns (collectively, its “Registered Proprietary Intellectual Property”), together with all material unregistered trademarks. To ;
(2) a complete and accurate list and description of the Company’s Knowledgelicenses, all material Registered sublicenses and other Contracts from or with third parties by which it uses or has the right to use a third party’s Intellectual Property has been maintained effective by the filing (“Licensed Intellectual Property”); and
(3) a complete and accurate list of all necessary filingslicenses, maintenance sublicenses and renewals and timely payment of requisite feesother Contracts by which the Company has licensed, sublicensed or otherwise granted a third party the right to use its Proprietary Intellectual Property or Licensed Intellectual Property.
(b) To Except as disclosed on Schedule 4.14(b);
(1) the Company has good and marketable title to all of its Proprietary Intellectual Property, free and clear of any Liens;
(2) the Company possesses all of the rights necessary to use all of its Proprietary Intellectual Property;
(3) to Sellers’ Knowledge, (i) the Company’s Proprietary Intellectual Property is not violating or infringing and has not violated or infringed any third party’s Intellectual Property, and (ii) no third party is violating or infringing or has violated or infringed the Company’s Proprietary Intellectual Property; and
(4) no Suit is pending or, to Sellers’s Knowledge, Threatened, that challenges the conduct of the business of legality, validity, enforceability, use or exclusive ownership by the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectof its Proprietary Intellectual Property.
(c) To Except as disclosed on Schedule 4.14(c):
(1) the CompanyCompany possesses all of the rights necessary to use all of its Licensed Intellectual Property;
(2) the Company is not, and to Sellers’s Knowledge, no third other party is currently misappropriatingis, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not hadin Default in a material respect under a license, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets sublicense or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.Contract for Licensed Intellectual Property; and
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company has not given Notice to effectively performor received any Notice from any other Person relating to an alleged or potential Default under, in all material respectsor an intention to terminate or not renew, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedany license, sublicense or other Contract for Licensed Intellectual Property.
Appears in 1 contract
Intellectual Property. (a) Within ten (10) Business Days following Section 2.14 of the date of this Agreement, the Company shall provide Parent with a correct Disclosure Schedule contains an accurate and complete list of all Intellectual Property (as hereinafter defined) owned by each Company for which state, federal or foreign registration has been obtained or is pending and which is material to the business or operations of such Company and all agreements under which any Person has granted a license for any Intellectual Property to either Company (other than license agreements for "off the shelf" third party computer software not included within such Company's products or any services). Each Company Subsidiary that is has all right, title and interest in, a valid and binding license to use, or has the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledgerequisite permission and authority to use, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, used in the conduct of its business, except where the business of the Company and the Company Subsidiaries as it is currently conducted and planned failure to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property have such rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect. Except as disclosed in Section 2.14 of the Disclosure Schedule, the Company and the Company Subsidiaries own no claim of infringement or are licensed to use, or otherwise possess valid rights to use, all misappropriation of Intellectual Property necessary is or has been pending or, to conduct the business knowledge of Seller, threatened against either Company, and, to the knowledge of Seller, neither Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute infringing or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of misappropriating any Intellectual Property rights (which is addressed of any Person. Neither Company has expressly granted any license, franchise or permit in Section 4.21(b) and Section 4.21(c)).
(e) To effect on the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures date hereof to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom use any of the Company trade names or any of the Company Subsidiaries has a confidentiality obligation)trademarks owned by it. To the Company’s KnowledgeThe term "INTELLECTUAL PROPERTY" means patents and patent rights, no such trademarks and trademark rights, tradenames and tradename rights, service marks and service xxxx rights, service names and service name rights, copyright and copyright rights, trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects secret rights and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breachespublicity, and (v) are considered by the Company to effectively perform, in other proprietary intellectual property rights and all material respects, all information technology operations necessary to conduct the businesses pending applications for and registrations of any of the Company and the Company Subsidiaries as they are currently conductedforegoing.
Appears in 1 contract
Intellectual Property. (aSchedule 3.10(A) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with sets forth a correct true and complete list of the registered trademarks, registered service marks, internet domain names, registered copyrights, and applications for any of the foregoing owned as of the date hereof by the Company and its Subsidiaries and all such issued and registered Intellectual Property is subsisting and in full force and effect, and, to the Knowledge of the Company, valid and enforceable. Schedule 3.10(B) sets forth a true and complete list of the patents and patent applications owned as of the date hereof by the Company and/or its Subsidiaries and, to the Knowledge of the Company, all such patents and patent applications are solely owned by the Company or any its Subsidiaries or jointly owned by the Company Subsidiary that is and/or its Subsidiaries on the subject of an application, certificate, filing, registration one hand and a third party on the other hand. Except as set forth in Schedule 3.10:
(a) (i) the Company Entities solely and exclusively own and possess good title to all material Intellectual Property owned or other document issued by, filed with or recorded purported to be owned by any Governmental Authority or domain name registrar (of the “Registered Company Entities, including the Intellectual Property”)Property set forth in Schedule 3.10, together with and hold all of their right, title and interest in and to all material unregistered trademarks. To the Company’s Knowledge, all material Registered Company Intellectual Property free and clear of all Liens (other than Permitted Liens) and (ii) no material Intellectual Property exclusively licensed to or owned (or purported to be exclusively licensed to or owned) by any of the Company Entities has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.adjudged invalid or unenforceable in whole or part;
(b) To the Company’s KnowledgeCompany Entities own or have a valid and enforceable license or other sufficient right to use to all Intellectual Property necessary for, or used or held for use in, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.Entities in all material respects;
(c) To since the Company’s KnowledgeLookback Date, no neither the Company nor any of its Subsidiaries has received any written notices from any third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or other violation of any third party Intellectual Property rights by any Company Entity;
(which d) no Company Entity has since the Lookback Date infringed, induced or contributed to the infringement of, misappropriated, or otherwise violated or is addressed in Section 4.21(b) and Section 4.21(c)).currently infringing, inducing or contributing to the infringement of, misappropriating, or otherwise violating the Intellectual Property of any third party;
(e) To there is no, and, since the Lookback Date, has been no, Proceeding pending or, to the Knowledge of the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledgethreatened, no such trade secrets or other material confidential information has been disclosed by the Company or against any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets Entity (i) are in operating order in all material respects and are fulfilling alleging that the purposes for which they were acquiredany Company Entity has infringed, licensed misappropriated or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced otherwise violated any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced Intellectual Property of any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.third party or
Appears in 1 contract
Samples: Merger Agreement (Charles River Laboratories International, Inc.)
Intellectual Property. The Section 3.12 Disclosure Schedule sets forth all patents, trademarks, service marks, trade names, copyrights, formulas, and other proprietary rights and processes (aprovided that formulas of the Companies are listed on such Disclosure Schedule by general description only) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all are material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of to the business of the Company and Companies (collectively referred to herein with the Company Subsidiaries trade secrets of the Companies as it is currently conducted and planned the “Intellectual Property Rights”). The Companies have the right to be conducted does use the Intellectual Property Rights freely and, except as indicated on the Section 3.12 Disclosure Schedule, own the Intellectual Property Rights, free of any lien, encumbrance, or existing or known claim. The Section 3.12 Disclosure Schedule describes any obligation of the Companies, or any other entity, to pay royalties or other compensation to third parties in exchange for the right to use the Intellectual Property Rights. The Companies have not infringeassigned, misappropriate hypothecated or otherwise violate encumbered any of the Intellectual Property rights Rights. The Companies may freely assign or transfer all licenses that they may have with third parties with respect to the Intellectual Property Rights. Except as indicated in the Section 3.12 Disclosure Schedule, the Stockholders and SES have no knowledge of any third party infringement of any of the Intellectual Property Rights, and the neither Company has not received entered into any written allegations agreement to that effect.
(c) To indemnify any party against any charge of infringement of any of the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights Rights. The Companies have not been sued for infringing any intellectual property right of another person or entity. None of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary Rights or other know-how relating to conduct the business of the Company and Companies, whose value to the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation Companies are contingent upon maintenance of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information thereof, to the knowledge of the Company Stockholders and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information SES has been disclosed by either of the Company Companies or any Company Subsidiaries of their agents to any Person person other than pursuant those persons who are bound to a written agreement restricting the disclosure and use hold such information in confidence by operation of such trade secrets law. The Stockholders do not claim any ownership or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) interest with respect to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedIntellectual Property Rights.
Appears in 1 contract
Samples: Stock Purchase Agreement (Flotek Industries Inc/Cn/)
Intellectual Property. (a) Within ten Section 3.19(a) of the Company Disclosure Letter lists all domain name registrations and all Patents, Trademarks, and Copyrights, in each case that are owned by or held in the name of the Company or any Company Subsidiary (10the “Company Registered Intellectual Property”), and indicates for each item of Company Registered Intellectual Property the registration or application number, owner, filing jurisdiction and date of expiration (as applicable). Except as set forth in Section 3.19(a) Business Days following of the Company Disclosure Letter, (i) neither the Company nor any Company Subsidiary has received, in the twelve (12) months preceding the date of this Agreement, any material charge, complaint, claim, demand or notice challenging the validity or enforceability of any of the Company shall provide Parent with a correct Registered Intellectual Property, and complete list (ii) each material item of Company Registered Intellectual Property is subsisting and in full force and effect and, to the knowledge of the Company, valid and enforceable.
(b) The Company and the Company Subsidiaries own or have adequate and enforceable rights to use all Patents, Trademarks, Copyrights, Internet domain names, Trade Secrets and all other intellectual property or equivalent rights in any jurisdiction worldwide (collectively, “Intellectual Property”) that are used in the operation of the business of the Company or any Company Subsidiary as currently conducted (the “Company Intellectual Property”). All Company Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application(collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Owned Company Intellectual Property”) is owned by the Company or the Company Subsidiaries free and clear of all Liens (other than Permitted Liens), together with . The Company Intellectual Property comprises all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective used by or necessary for the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct operation of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectconducted.
(c) To Except as set forth in Section 3.19(c) of the Company’s KnowledgeCompany Disclosure Letter, no third party is currently misappropriatingthe Company or a Company Subsidiary has the right to bring actions for past, infringing present or otherwise violating future infringement, misappropriation or unauthorized use of any Owned Company Intellectual Property (including Intellectual Property rights of in or to any Software that is owned by the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected material to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct operation of the business of the Company and the Company Subsidiaries as it is currently conducted; provided.
(d) Except as set forth in Section 3.19(d) of the Company Disclosure Letter, howeverthe operation of the business of the Company and the Company Subsidiaries as currently conducted does not infringe upon, that misappropriate or make unauthorized use of or otherwise violate, and the foregoing representation operation of the business of the Company and warranty in this Section 4.21(d) shall not constitute the Company Subsidiaries has not, since January 1, 2017, infringed upon, misappropriated, made unauthorized use of or be deemed or construed as any representation or warranty with respect to infringementotherwise violated, misappropriation, or violation of any Intellectual Property rights (which is addressed of any other person. Except as set forth in Section 4.21(b3.19(d) of the Company Disclosure Letter, (i) no material written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or unauthorized use or violation by the Company or any Company Subsidiary is pending, and Section 4.21(c))(ii) to the knowledge of Company, no such material allegation has been threatened against the Company or any Company Subsidiary.
(e) To the Company’s Knowledgeknowledge, no other person currently is infringing upon, misappropriating or making unauthorized use of or otherwise violating, or since January 1, 2017 has infringed upon, misappropriated, made unauthorized use of or otherwise violated, any Owned Company Intellectual Property, and no charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or unauthorized use or violation is pending, nor, to the knowledge of the Company, is there any basis therefor.
(f) Except as set forth in Section 3.19(f) of the Company Disclosure Letter, there are no royalties, fees (including registration, maintenance and renewal fees), honoraria or other payments payable by the Company or any Company Subsidiary to any person by reason of the ownership, development, modification, use, license, sublicense, sale or other disposition of any Owned Company Intellectual Property or any other material Intellectual Property that is used in the operation of the business of the Company or any Company Subsidiary as currently conducted, other than salaries and sales commissions paid to employees and sales agents and license fees charged by third parties pursuant to a Contract entered into in the ordinary course of business.
(g) The Company and the Company Subsidiaries have taken reasonable measures to protect their respective rights in, and the confidentiality, value and security of, the Trade Secrets and other material confidential or proprietary information included in the Owned Company Intellectual Property or otherwise owned by the Company or any Company Subsidiary.
(h) Except as set forth in Section 3.19(h) of the Company Disclosure Letter, all employees, independent contractors, officers, managers and directors of the Company or any Company Subsidiary who (i) are or were at any time involved in the design or development of any material Intellectual Property for or on behalf of the Company or any Company Subsidiary have executed and delivered to the Company or a Company Subsidiary an agreement assigning to the Company or such Company Subsidiary their entire right, title and interest in and to such Intellectual Property to the extent not already owned by the Company or a Company Subsidiary by operation of Law and (ii) have been exposed to any Trade Secret or other material confidential know-how included in the Owned Company Intellectual Property or otherwise owned by the Company or a Company Subsidiary have executed and delivered to the Company or a Company Subsidiary an agreement protecting the secrecy, confidentiality and value of such Trade Secrets and confidential information, which agreements described in clauses (i) and (ii) of this Section 3.19(h) are valid and enforceable under the applicable Laws of the jurisdiction in which the applicable employee, independent contractor, officer or director was located at such time.
(i) The Company and the Company Subsidiaries have, and following the consummation of the Transactions shall continue to have, sufficient rights to use all material IT Assets in the manner those IT Assets are used by the Company and the Company Subsidiaries in the operation of their businesses as currently conducted. The IT Assets operate and perform in all material respects in accordance with their documentation and functional specifications and otherwise as required in connection with the operation of the business of the Company or any Company Subsidiary as currently conducted. The IT Assets have not materially malfunctioned or failed since January 1, 2017, and, to the knowledge of Company, do not contain any viruses, bugs, faults or other devices or effects that could (i) enable or assist any person to access without authorization any of the IT Assets, or (ii) otherwise materially and adversely affect the functionality of any of the IT Assets, except as disclosed in their documentation. The Company and the Company Subsidiaries have implemented reasonable backup, security and disaster recover technology, plans, procedures and facilities consistent with industry practices.
(j) Except as set forth in Section 3.19(j) of the Company Disclosure Letter, the Company and the Company Subsidiaries have taken commercially reasonable measures not used Software distributed as “open source software” or under a similar licensing or distribution model (collectively, “Open Source Software”) in any manner that could, pursuant to protect the confidentiality of all trade secrets and any other material confidential information terms of the Company and license governing such Open Source Software, impose any material limitation, restriction or condition on the Company Subsidiaries (and any confidential information owned by any Person to whom right of the Company or any Company Subsidiary to use or distribute any of their respective products or services. Without limiting the generality of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledgeforegoing, no such trade secrets use would or other material confidential information has been disclosed could require the Company or any Company Subsidiary to do any of the following: (i) disclose or distribute any Software included in the Owned Company Intellectual Property in source code form; (ii) authorize a third party to make derivative works of such Software; or (iii) distribute any Software included in the Owned Company Intellectual Property.
(k) No source code of any Software owned by the Company or any Company Subsidiaries Subsidiary has been licensed or otherwise provided to any Person other than pursuant third party who was not, at the time thereof, an employee or contractor of the Company or a Company Subsidiary bound by obligations of confidentiality and non-use with respect to thereto, and whose only activity with respect to the source code was to provide services for the exclusive benefit of the Company or a written agreement restricting Company Subsidiary. No person has any right to access or use any source code owned by the disclosure and use of such trade secrets Company or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects Company Subsidiary, and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledgeknowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breachesno event has occurred, and no circumstance or condition exists, that (vwith or without notice or lapse of time, or both) are considered will, or would reasonably be expected to result in, nor will the Transactions require, the disclosure or release of any such source code by the Company or any Company Subsidiary, escrow agent(s) or other person to effectively performany person.
(l) No funding, facilities or personnel of any Governmental Entity, university or other academic institution or research center has been used in all material respectsconnection with the development of any Intellectual Property owned by the Company or any Company Subsidiary. No Governmental Entity, all information technology operations necessary to conduct the businesses university or other academic institution or research center (or any personnel of any of the Company and foregoing) has any right, title or interest (including any “march in” rights) in or to any Intellectual Property owned by the Company Subsidiaries as they are currently conductedor any Company Subsidiary.
Appears in 1 contract
Intellectual Property. (a) Within ten Schedule 3.14(a) lists (10i) Business Days following the date of this Agreement, the all Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To and (ii) any proceedings or actions before any court, tribunal (including the Company’s Knowledge, all material Registered PTO or equivalent authority anywhere in the world) related to any of the Company Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesProperty.
(b) Each item of Company Intellectual Property, including all Company Registered Intellectual Property listed on Schedule 3.14(a), and all Intellectual Property licensed to the Company, is free and clear of any Liens. The Company is the exclusive owner or exclusive licensee of all Company Intellectual Property and the use of Company Intellectual Property does not infringe on the intellectual property rights of any other individual or entity.
(c) To the Company’s Knowledgeextent that any Intellectual Property has been developed or created independently or jointly by any person other than the Company for which the Company has, directly or indirectly, provided consideration, the Company has a written agreement with such person with respect thereto, and the Company thereby has obtained ownership of, and is the exclusive owner of, all such Intellectual Property therein and associated Intellectual Property Rights by operation of law or by valid assignment, and has required the waiver of all non-assignable rights, including but not limited to, all author or moral rights.
(d) The Company has not transferred ownership of, or granted any exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Intellectual Property or Intellectual Property Rights that is or was Company Intellectual Property, to any other person.
(e) The Company Intellectual Property constitutes all the Intellectual Property and Intellectual Property Rights used in or necessary to the conduct of the business of the Company as currently is conducted or planned to be conducted, including, without limitation, the design, development, distribution, marketing, manufacture, use, import, license and sale of the products, technology and services of the Company (including products, technology or services currently under development).
(f) Other than (i) widely available binary code and commercial end-user licenses, but not including public or open technology, and (ii) other non-exclusive licenses and related agreements with respect thereto of the Company’s products to end-users pursuant to written agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s standard form(s) of end-user license including attachments (which is or are included on Schedule 3.14(f)), Schedule 3.14(f) sets forth a true and complete list of all contracts, licenses and agreements to which the Company is a party with respect to any Intellectual Property and Intellectual Property Rights. The Company is not in breach of, nor has the Company failed to perform under, any of the foregoing contracts, licenses or agreements and, to the Company’s and each Shareholder’s knowledge, no other party to any such contract, license or agreement is in breach thereof or has failed to perform thereunder. No third party who has licensed Intellectual Property or Intellectual Property Rights to the Company has ownership rights or license rights to improvements made by the Company in such Intellectual Property which has been licensed to the Company.
(g) Other than (i) widely available binary code and commercial end-user licenses, but not including public or open technology, and (ii) other non-exclusive licenses and related agreements with respect thereto of the Company’s products to end-users pursuant to written agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s standard form(s) of end-user license including attachments (which is or are included on Schedule 3.14(f)), Schedule 3.14(g) sets forth a true and complete list of all contracts, licenses and agreements between the Company and any other person wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such other person of the Intellectual Property Rights of any person other than the Company.
(h) The operation of the business of the Company as currently conducted or as currently contemplated to be conducted, including but not limited to the design, development, distribution, marketing, use, import, manufacture, license, and sale of the products, technology or services (including products, technology or services currently under development) of the Company, has not, does not and will not infringe or misappropriate the Intellectual Property Rights of any person, violate the rights of any person (including rights to privacy or publicity), or constitute unfair competition or trade practices under the laws of any jurisdiction. The Company has not received any notice from any person claiming that such operation or any act, product, technology or service (including products, technology or services currently under development) of the Company infringes or misappropriates the Intellectual Property Rights of any person or constitutes unfair competition or trade practices under the laws of any jurisdiction, nor does the Company or any Shareholder have knowledge of any basis therefor.
(i) Each item of Company Registered Intellectual Property is valid and subsisting, and all necessary registration, maintenance and renewal fees in connection with such Company Registered Intellectual Property have been paid and all necessary documents and certificates in connection with such Company Registered Intellectual Property have been filed with the relevant patent, copyright, trademark, or other authorities in Canada or the United States or other non-Canadian jurisdictions, as the case may be, for the purposes of maintaining such Registered Intellectual Property. No fee in respect of any Canadian patent has been paid on the basis that the applicant or patentee qualified as a small entity under the Patent Act (Canada) unless: (i) the applicant or patentee did so qualify on the date each application, or application resulting in a patent, comprised within the Canadian patent was filed on such basis; or (ii) the difference between any fees paid on the basis of small entity status and the full fees payable have been timely paid pursuant to the provisions of Section 78.6 of the Patent Act. There are no actions that must be taken by the Company within 60 days of the Closing Date, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of obtaining, maintaining, perfecting, or preserving or renewing any Registered Intellectual Property. For each product, technology or service of the Company that constitutes or includes Intellectual Property, the Company has taken appropriate measures to make all such Intellectual Property Registered Intellectual Property. In each case in which the Company has acquired any Intellectual Property or Intellectual Property Rights from any person, the Company has obtained a valid and enforceable assignment sufficient to irrevocably transfer all rights in such Intellectual Property and the associated Intellectual Property Rights (including the right to seek past and future damages with respect thereto) to the Company and, to the maximum extent provided for by, and in accordance with, applicable laws and regulations, the Company has recorded each such assignment with all relevant governmental authorities, including the PTO or their respective equivalents in any relevant non-Canadian jurisdiction, as the case may be.
(j) Neither the Company nor any Shareholder has any knowledge of any facts or circumstances that would render any Company Intellectual Property invalid or unenforceable. Without limiting the foregoing, neither the Company nor any Shareholder knows of any information, materials, facts, or circumstances, including any information or fact that would constitute prior art, that would render any of the Company Registered Intellectual Property Rights invalid or unenforceable, or would adversely effect any pending application for any Company Registered Intellectual Property Right and the Company Subsidiaries has not misrepresented, or failed to disclose, and has no knowledge (and none of the Shareholders have any knowledge) of any misrepresentation or failure to disclose, any fact or circumstances in any application for any Company Registered Intellectual Property Right that would constitute fraud or a misrepresentation with respect to such application or that would otherwise affect the validity or enforceability of any Company Registered Intellectual Property Right.
(k) There are no contracts, licenses or agreements between the Company and any other person with respect to Company Intellectual Property or other Intellectual Property used in and/or necessary to the conduct of the business as it is currently conducted and or planned to be conducted does not infringeunder which there is any dispute regarding the scope of such agreement or performance under such agreement, misappropriate including with respect to any payments to be made or received by the Company thereunder.
(l) Neither this Agreement nor the transactions contemplated by this Agreement, including the assignment to Acquireco or the Company by operation of law or otherwise violate of any contracts or agreements to which the Company is a party, will result in: (i) Acquireco or the Company granting to any third party any right to or with respect to any Intellectual Property rights owned by, or licensed to, any of them; (ii) Acquireco or the Company being bound by, or subject to, any non-compete or other restriction on the operation or scope of their respective businesses; or (iii) Acquireco or the Company being obligated to pay any royalties or other material amounts to any third party and in excess of those payable by either of them, respectively, in the Company has not received any written allegations to that effectabsence of this Agreement or the transactions contemplated hereby.
(cm) To The Company does not have any currently pending claim against any third party for infringing or misappropriating any Company Intellectual Property and, to the knowledge of the Company and each Shareholder, no person or entity has infringed or misappropriated, or is infringing or misappropriating, any Company Intellectual Property.
(n) There have been, and are, no claims asserted against the Company related to any product or service of Company (including products or services currently under development).
(o) The Company has taken those steps set forth on Schedule 3.14(o) to protect the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights in confidential information and Trade Secrets of the Company or provided by any other person to the Company. Without limiting the foregoing, the Company Subsidiaryincluded proprietary information, confidentiality and assignment agreements in the Employee Agreements. All Employees who have made any contribution to the Company’s Intellectual Property have executed proprietary information, confidentiality and assignment agreements in substantially the form of Employment Agreement delivered to Acquireco as item III(F) of the Due Diligence materials.
(dp) Except as has not hadSchedule 3.14(p) lists all proceedings or actions before any court, and would not reasonably be expected to have, individually tribunal or other governmental authority (including the PTO or equivalent authority anywhere in the aggregate, a Company Material Adverse Effect, world) related to the Company and Intellectual Property. No Company Intellectual Property, Intellectual Property Rights, product, technology or service of the Company Subsidiaries own is subject to any proceeding or are licensed to outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or otherwise possess valid rights to uselicensing thereof by the Company or may affect the validity, all use or enforceability of such Company Intellectual Property necessary to conduct Property.
(q) To the business knowledge of the Company and each Shareholder, no (i) product, technology, service or publication of the Company, (ii) material published or distributed by the Company, or (iii) conduct or statement of the Company Subsidiaries constitutes obscene material, a defamatory statement or material, false advertising or otherwise violates any law or regulation.
(r) No government funding (other than pursuant to the Scientific Research and Experimental Development Tax Credit Program), facilities or resources of a university, college, other educational institution or research center or funding from third parties was used in the development of the Company Intellectual Property, and no Governmental Entity, university, college, other educational institution or research center has any claim or right in or to any Company Intellectual Property. To the knowledge of the Shareholders, no current or former employee, consultant or independent contractor of the Company who was involved in, or who contributed to, the creation or development of any Company Intellectual Property, has performed services for the government, a university, college or other educational institution, or a research center, during a period of time during which such employee, consultant or independent contractor was also performing services for the Company.
(s) Schedule 3.14(s) sets forth all software or other material that is distributed as it is currently conducted“free software,” “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), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License) (“Open Source Materials”) used by the Company in any way, and describes the manner in which such Open Source Materials were used (such description shall include, without limitation, whether (and, if so, how) the Open Source Materials were modified and/or distributed by the Company). The Company has not (a) incorporated Open Source Materials into, or combined Open Source Materials with, the Company Intellectual Property; provided(b) distributed Open Source Materials in conjunction with any Company Intellectual Property; or (c) used Open Source Materials that create, howeveror purport to create, that obligations for the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty Company with respect to infringement, misappropriationCompany Intellectual Property or grant, or violation of purport to grant, to any third party, any rights or immunities under Company Intellectual Property rights (which is addressed including, but not limited to, using any Open Source Materials that require, as a condition of use, modification and/or distribution of such Open Source Materials that other software incorporated into, derived from or distributed with such Open Source Materials be (i) disclosed or distributed in Section 4.21(bsource code form, (ii) and Section 4.21(c)be licensed for the purpose of making derivative works, or (iii) be redistributable at no charge).
(et) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality For purposes of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.this section:
Appears in 1 contract
Intellectual Property. (ai) Within ten (10) Business Days following the date The Company and/or each of this Agreementits Subsidiaries owns, the Company shall provide Parent with a correct or is licensed or otherwise possesses legally enforceable rights to use all patents, trademarks, trade names, service marks, copyrights, and complete list of all Intellectual Property owned by the Company any applications therefor, technology, know-how, computer software programs or any Company Subsidiary applications, and tangible or intangible proprietary information or materials that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of are used in the business of the Company and the Company Subsidiaries as it is currently conducted and planned its Subsidiaries, except for any such failures to own, be conducted does not infringe, misappropriate licensed or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to havepossess that, individually or in the aggregate, are not reasonably likely to have a Company Material Adverse Effect.
(ii) Except as disclosed in Company Reports filed prior to the date hereof or as is not reasonably likely to have a Company Material Adverse Effect:
(A) the Company is not, nor will it be as a result of the execution and delivery of this Agreement or the performance of its obligations hereunder, in violation of any licenses, sublicenses and other agreements as to which the Company is a party and pursuant to which the Company is authorized to use any third-party patents, trademarks, service marks, copyrights, trade secrets or computer software (collectively, "Third-Party Intellectual Property Rights");
(B) no claims with respect to (I) the patents, registered and material unregistered trademarks and service marks, registered copyrights, trade names, and any applications therefor, trade secrets or computer software owned by the Company or any of its Subsidiaries (collectively, the "Company and Intellectual Property Rights"); or (II) Third-Party Intellectual Property Rights are currently pending or, to the knowledge of the executive officers of the Company, are threatened by any Person;
(C) the executive officers of the Company Subsidiaries own do not know of any valid grounds for any bona fide claims (I) to the effect that the sale, licensing or are use of any product as now used, sold or licensed to or proposed for use, sale or otherwise possess valid rights to uselicense by the Company or any of its Subsidiaries, all infringes on any copyright, patent, trademark, service mark or trade secret of any Person; (II) against the use by the Company or any of its Subsidiaries of any Company Intellectual Property necessary to conduct Right or Third-Party Intellectual Property Right used in the business of the Company and the Company or any of its Subsidiaries as it is currently conducted or as proposed to be conducted; provided(III) challenging the ownership, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute validity or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation enforceability of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and Intellectual Property Rights; or (IV) challenging the Company Subsidiaries (and any confidential information owned license or legally enforceable right to use of the Third-Party Intellectual Rights by any Person to whom the Company or any of its Subsidiaries; and
(D) to the knowledge of the executive officers of the Company, there is no unauthorized use, infringement or misappropriation of any of the Company Subsidiaries has a confidentiality obligation). To the Company’s KnowledgeIntellectual Property Rights by any third party, no such trade secrets including any employee or other material confidential information has been disclosed by former employee of the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personits Subsidiaries.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (a) Within ten (10Section 2.17(a) Business Days following of the Disclosure Schedule lists all Company Registered Intellectual Property and lists any proceedings or actions pending as of the date hereof before any court, tribunal (including the PTO or equivalent authority anywhere in the world) related to any of this Agreement, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To Each item of Company Intellectual Property, including all Company Registered Intellectual Property listed in Section 2.17(a) of the Company’s KnowledgeDisclosure Schedule, but excluding Intellectual Property licensed to the Company under any License, is owned exclusively by the Company and is free and clear of any Liens. The Company (i) to its knowledge, owns exclusively all trademarks, service marks and trade names used in connection with the operation or conduct of the business of the Company, including the sale of any products or technology or the provision of any services by the Company and (ii) owns exclusively, and has good title to, all copyrighted works that are (I) Company products or (II) works of authorship that are material to the Company's business and that the Company Subsidiaries as it is currently conducted and planned purports to be conducted does not infringeown; provided, misappropriate however, that, in each case, such works may incorporate copyrighted works or otherwise violate any Intellectual Property rights works of any authorship of third party and parties which are licensed to the Company has not received any written allegations to that effector are in the public domain.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating extent that any Company Intellectual Property rights of has been developed or created by any Person other than the Company, the Company has a written agreement with such Person with respect thereto and the Company has either (i) obtained ownership of, and is the exclusive owner of, all such Intellectual Property by operation of law or by valid assignment of any Company Subsidiarysuch rights or (ii) has obtained a License under or to such Intellectual Property.
(d) Except as has not had, and would not reasonably be expected pursuant to have, individually or agreements described in Section 2.17(d) of the aggregate, a Company Material Adverse EffectDisclosure Schedule, the Company and has not transferred ownership of or granted any License of or other right to use or authorized the Company Subsidiaries own or are licensed to use, or otherwise possess valid retention of any rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of use any Intellectual Property rights (which that is addressed in Section 4.21(b) and Section 4.21(c))or was Company Intellectual Property, to any other Person.
(e) To Except as set forth in Section 2.17(e) of the Company’s KnowledgeDisclosure Schedule, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of owns all trade secrets and any other material confidential information of the Company and the Company Subsidiaries Intellectual Property (and any confidential information owned by any Person i) presently embodied, or proposed to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To be embodied, in the Company’s Knowledge's products (including, no such trade secrets but not limited to, the Orion SA Product) currently under development or other material confidential information has been disclosed contemplated for development or (ii) utilized in any development tool or design environment created or modified by the Company (including, but not limited to, standard cells) necessary or used for the development of any Company Subsidiaries such products. Except as set forth in Section 2.17(e) of the Disclosure Schedule, the Company's rights with respect to any Person other than pursuant to a written agreement restricting the disclosure Intellectual Property described in clause (a) permit the Company's design, development, distribution, marketing, manufacture, use, import, license, and use sale of such trade secrets products without payment of royalties or any other material confidential information by such Personfees.
(f) The IT Assets Contracts and Licenses listed in Section 2.17(f) of the Disclosure Schedule include all Contracts and Licenses, to which the Company is a party with respect to any Intellectual Property, exclusive of Contracts and Licenses for "off the shelf" software products (excluding development tools and design environments) utilized in the Company's business operations and development activities, but not embodied in its products. No Person other than the Company has ownership rights to improvements made by the Company in Intellectual Property which has been licensed to the Company.
(g) Section 2.17(g) of the Disclosure Schedule lists all Contracts, Licenses and agreements between the Company and any other Person, exclusive of provisions contained in Contracts and Licenses for "off the shelf" software products, development tools and design environments utilized in the Company's business operations and development activities, but not embodied in its products, wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any obligation or Liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such other Person of the Intellectual Property of any Person other than the Company.
(h) To the Company's knowledge, the operation of the business of the Company as currently conducted or as presently proposed to be conducted, including the Company's design, development, use, import, manufacture and sale of the products, technology or services (including products, technology or services currently under development) of the Company does not infringe or misappropriate the Intellectual Property of any Person, violate the rights of any Person (including rights to privacy or publicity), or constitute unfair competition or trade practices under any Laws. Except as set forth in Section 2.17(h) of the Disclosure Schedule, the Company has not received notice from any Person claiming that such operation or any act, product, technology or service (including products, technology or services currently under development) of the Company infringes or misappropriates the Intellectual Property of any Person or constitutes unfair competition or trade practices under any Law, including notice of third party patent or other Intellectual Property rights from a potential licensor of such rights.
(i) are Each item of Company Registered Intellectual Property is valid and subsisting, and all necessary registration, maintenance, renewal fees, annuity fees and taxes in operating order connection with such Registered Intellectual Property have been paid and all necessary documents and certificates in all material respects and are fulfilling connection with such Company Registered Intellectual Property have been filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Registered Intellectual Property. Section 2.17(i) of the Disclosure Schedule lists all actions that must be taken by the Company within 180 days from the date hereof, including the payment of any registration, maintenance, renewal fees, annuity fees and taxes or the filing of any documents, applications or certificates for the purposes of maintaining, perfecting or preserving or renewing any Company Registered Intellectual Property. Except as set forth on Section 2.17(i) of the Disclosure Schedule, the Company has registered the copyright with the U.S. Copyright Office for the latest version of each product or technology of the Company that constitutes or includes a copyrightable work. In each case in which they were acquiredthe Company has acquired any Intellectual Property rights from any Person that is presently embodied, licensed or established proposed to be embodied, in the Company's products (including, but not limited to, the Orion SA Product) or in Company-created or modified development tools (including standard cells) or design environments, the Company has obtained a valid and enforceable assignment sufficient to irrevocably transfer all rights in such Intellectual Property (including the right to seek past and future damages with respect to such Intellectual Property) to the Company and, to the maximum extent provided for by, and in accordance with, applicable Laws, the Company has recorded each such assignment with the relevant Governmental or Regulatory Authority, including the PTO, the U.S. Copyright Office, or their respective equivalents in any relevant foreign jurisdiction, as the case may be.
(j) There are no Contracts or Licenses between the Company and any other Person with respect to Company Intellectual Property under which there is any dispute known to the Company regarding the scope of such Contract or License, or performance under such Contract or License, including with respect to any payments to be made or received by the Company thereunder.
(k) To the knowledge of the Company, no Person is infringing or misappropriating any Company Intellectual Property.
(l) The Company has taken all reasonable steps to protect the Company's rights in confidential information and trade secrets of the Company or provided by any other Person to the Company subject to a duty of confidentiality. Without limiting the foregoing, the Company has, and enforces, a policy requiring each employee to execute proprietary information, confidentiality and invention and copyright assignment agreements substantially in the form set forth in Section 2.17(l) of the Disclosure Schedule, and requiring each independent contractor or consultant which has or may have access to Company Intellectual Property to execute proprietary information, confidentiality and invention and copyright assignment agreements which contain substantially equivalent provisions, and all current and former employees, consultants and independent contractors of the Company have executed such an efficient manner without material downtime agreement.
(m) No Company Intellectual Property or errorsproduct, technology or service of the Company is subject to any Order or Action or Proceeding that restricts, or that is reasonably expected to restrict in any manner, the use, transfer or licensing of any Company Intellectual Property by the Company or that may affect the validity, use or enforceability of such Company Intellectual Property.
(n) To the knowledge of the Company, no (i) product, technology, service or publication of the Company, (ii) have not, in material published or distributed by the past three (3) years, experienced any material errors and/or breakdowns, Company or (iii) conduct or statement of Company constitutes obscene material, a defamatory statement or material, false advertising or otherwise violates any Law.
(o) The Company has taken all actions necessary and appropriate to assure that all of its products currently under development will, without interruption or manual intervention, continue to consistently, predictably and accurately record, store, process, calculate and present calendar dates falling on and after (and if applicable, spans of time including) January 1, 2000, and will consistently, predictably and accurately calculate any information dependent on or relating to such dates in the same manner, and with the same functionality, data integrity and performance, as such products record, store, process, calculate and present calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such dates.
(p) Neither this Agreement nor any transactions contemplated by this Agreement will result in Parent's granting any rights or licenses with respect to the Company’s Knowledge, do not contain Unauthorized Code, (iv) Intellectual Property of Parent to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by Person pursuant to any Contract to which the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses is a party or by which any of the Company its Assets and the Company Subsidiaries as they Properties are currently conductedbound.
Appears in 1 contract
Samples: Strategic Alliance Agreement and Plan of Merger (Broadcom Corp)
Intellectual Property. (a) Within ten (10Section 2.15(a)(i) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule contains a correct and complete list of of: (i) all registered Intellectual Property and Intellectual Property that is the subject of a pending application for registration in each case that is, owned by the Company or any of the Company Subsidiary that Subsidiaries and is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of to the business of the Company and the Company Subsidiaries as it is currently conducted (“Company Intellectual Property”); and planned (ii) all material Intellectual Property, other than as may be licensed pursuant to be conducted does not infringeOff-the-Shelf Software Agreements, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations that is licensed to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any of the Company Subsidiary.
Subsidiaries and is material to the business of the Company (d) “Licensed Intellectual Property”). Except as where failure to own, license or otherwise possess such rights has not had, had and would not reasonably be expected to have, individually or result in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information each of the Company and the Company Subsidiaries (x) has all right, title and any confidential information interest in and to the Company Intellectual Property owned by it, free and clear of all Encumbrances, other than rights and interest licensed to any other Person and Permitted Encumbrances, and (y) has valid rights to whom use the Licensed Intellectual Property. Except as set forth in Section 2.15(a)(ii) of the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries has received any written notice alleging that it has infringed, diluted or misappropriated, or, by conducting its business as currently conducted, has infringed, diluted or misappropriated, the Intellectual Property rights of any Person, and, except as set forth in Section 2.15(a)(ii) of the Company Disclosure Schedule, to the knowledge of the Company there is no valid basis for any such allegation. Except as set forth in Section 2.15(a)(iii) of the Company Disclosure Schedule, to the Company’s knowledge neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby will materially impair or materially alter the Company’s or any Company Subsidiary’s rights to any Company Intellectual Property or Licensed Intellectual Property. To the Company’s knowledge, all of the Company Intellectual Property and the license rights to the Licensed Intellectual Property are valid, enforceable and subsisting and, as of the date hereof, there is no material Action that is pending or, to the Company’s knowledge, threatened that challenges the rights of the Company or any of the Company Subsidiaries has a confidentiality obligation)in any material respect of any Company Intellectual Property or Licensed Intellectual Property or the validity, enforceability or effectiveness thereof. To The Company Intellectual Property and the Company’s Knowledge, no such trade secrets Licensed Intellectual Property constitute all material Intellectual Property owned by or other material confidential information has been disclosed by licensed to the Company or any the Company Subsidiaries to any Person other than pursuant to a written agreement restricting and used in or necessary for the disclosure and use of such trade secrets or any other material confidential information operation by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries of their respective businesses as they are currently conducted. Neither the Company nor any of the Company Subsidiaries is in breach or default in any material respect (or would with the giving of notice or lapse of time or both be in such breach or default) under any license to use any of the Licensed Intellectual Property.
(b) For purposes of this Agreement, “Intellectual Property” means (i) United States, international and foreign patents and patent applications, including divisionals, continuations, continuations-in-part, reissues, reexaminations and extensions thereof and counterparts claiming priority therefrom; utility models; invention disclosures; and statutory invention registrations and certificates; (ii) United States and foreign registered, pending and unregistered trademarks, service marks, trade dress, logos, trade names, corporate names and other source identifiers, domain names and registrations and applications for registration for any of the foregoing, together with all of the goodwill associated therewith; (iii) United States and foreign copyrights, and registrations and applications for registration thereof; and copyrightable works, including website content; (iv) all inventions and design rights (whether patentable or unpatentable) and all categories of trade secrets as defined in the Uniform Trade Secrets Act, including business, technical and financial information; and (v) confidential and proprietary information including, without limitation, know-how, recipes and formulas.
Appears in 1 contract
Samples: Business Combination Agreement (57th Street General Acquisition Corp)
Intellectual Property. (a) Within ten (10Company Disclosure Schedule 3.30(a) Business Days following the date of this Agreementsets forth a true, the Company shall provide Parent with a complete and correct and complete list of all registered and, to Company’s Knowledge, unregistered material Company Intellectual Property owned by the Company or any of its Subsidiaries, including the jurisdictions in which each such Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property right has been maintained effective by the filing of all necessary filings, maintenance issued or registered or in which any application for such issuance and renewals and timely payment of requisite feesregistration has been filed.
(b) To Company or its Subsidiaries own all right, title and interest in and to, or has a valid license or otherwise possess legally enforceable rights to use all Company Intellectual Property, free and clear of all Liens, royalty or other payment obligations (except for royalties or payments with respect to “off-the-shelf” Software at standard commercial rates).
(c) The Company Intellectual Property constitutes all of the Company’s Knowledge, the conduct of Intellectual Property used or useful in or necessary to carry on the business of Company and its Subsidiaries as currently conducted. Company is the owner or licensee of all right, title and interest in and to each of the items of Company Intellectual Property, free and clear of all Liens, and has the right to use without payment to any other Person all of the Company Intellectual Property other than in respect of licenses listed in Company Disclosure Schedule 3.30(g).
(d) The Company Intellectual Property owned by Company or its Subsidiaries is valid, subsisting and enforceable and has not been cancelled, forfeited, expired or abandoned, and neither Company nor any of its Subsidiaries has received notice challenging the validity or enforceability of any such Company Intellectual Property.
(e) Other than as set forth on Company Disclosure Schedule 3.07, none of Company or any of its Subsidiaries is, nor will any of them be as a result of the execution and delivery of this Agreement or the performance by Company of its obligations hereunder, in violation of any material licenses, sublicenses and other agreements as to which Company or any of its Subsidiaries is a party and pursuant to which Company or any of its Subsidiaries is authorized to use any third-party patents, trademarks, service marks, copyrights, trade secrets or computer software, and neither Company nor any of its Subsidiaries has received notice challenging Company’s or any of its Subsidiaries’ license or legally enforceable right to use any such third-party intellectual property rights, and the consummation of the transactions contemplated hereby will not result in the loss or impairment of the right of Company or any of its Subsidiaries as it is currently conducted to own or use any material Company Intellectual Property.
(f) Company and planned to be conducted does its Subsidiaries have not infringeinterfered with, misappropriate infringed upon, misappropriated, or otherwise violate conflicted with any Intellectual Property rights of any third party other Person, and the Company has not or any of its Subsidiaries have never received any written allegations to charge, complaint, claim, demand or notice alleging any such interference, infringement, misappropriation or violation (including any claim that effect.
(c) Company or any of its Subsidiaries must license or refrain from using any Intellectual Property rights of any other Person). To the Company’s Knowledge, no third party is currently misappropriatingother Person has interfered with, infringing infringed upon, misappropriated or otherwise violating conflicted with any Company Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to useowned by, or otherwise possess valid rights to uselicensed to, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of its Subsidiaries.
(g) Set forth on Company Disclosure Schedule 3.30(g) is a complete and accurate list and summary description, including any royalties paid or received by Company or its Subsidiaries, and Company has delivered to Buyer accurate and complete copies, of all contracts relating to the Company Subsidiaries has a confidentiality obligationIntellectual Property (other than non-exclusive licenses to generally available commercial software). To the There are no outstanding and to Company’s Knowledge, no threatened disputes or disagreements with respect to any such trade secrets or other material confidential information has been disclosed contract. Included in Company Disclosure Schedule 3.30(g) is a list of all items of Company Intellectual Property that are licensed by the Company or any Company of its Subsidiaries to any Person (“Licensed Business Intellectual Property”) and the owner or licensee of each such item of Licensed Business Intellectual Property (other than non-exclusive licenses to generally available commercial “off-the-shelf” software licensed pursuant to a written agreement restricting the disclosure “shrink wrap” or “click and use of such trade secrets or any other material confidential information by such Personaccept” licenses).
(fh) The Company’s and each of its Subsidiaries’ respective IT Assets Assets: (i) are in operating order operate and perform in all material respects as required by Company and are fulfilling the purposes for which they were acquired, licensed or established each of its Subsidiaries in an efficient manner without material downtime or errors, connection with their respective businesses and (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced materially malfunctioned or failed within the past two (2) years. Company and each of its Subsidiaries has implemented reasonable backup, security and disaster recovery technology and procedures consistent with industry practices. No action will be necessary as a result of the transactions contemplated by this Agreement to enable use of Company’s and its Subsidiaries’ respective IT Assets to continue by the Surviving Entity and its Subsidiaries to the same extent and in the same manner that such IT Assets have been used by Company and its Subsidiaries prior to the Effective Time.
(i) Except for ongoing payments due under contracts with third parties, Company’s and its Subsidiaries’ respective IT Assets are free from any material security breachesLiens (except for (i) statutory Liens for amounts not yet delinquent, and (vii) Liens for Taxes and other governmental charges and assessments, which are considered by not yet due and payable and for which adequate reserves are being maintained in accordance with GAAP). Neither Company nor any of its Subsidiaries has received notice of or is aware of any material circumstances, including the Company to effectively perform, in all material respects, all information technology operations necessary to conduct execution of this Agreement or the businesses Plan of Bank Merger or the consummation of the transactions contemplated hereby or thereby, that would enable any third party to terminate any of Company’s or its Subsidiaries’ agreements or arrangements relating to their respective IT Assets (including maintenance and support).
(j) Company and each of its Subsidiaries: (i) is, and at all times prior to the Company Subsidiaries as they are currently conducteddate hereof has been, compliant with all applicable Laws, and their own privacy policies and commitments to their respective customers, consumers and employees, concerning data protection and the privacy and security of personal data and the nonpublic personal information of their respective customers, consumers and employees and (ii) at no time during the two (2) years prior to the date hereof has received any notice asserting any violations of any of the foregoing. The transfer of all such personal data and nonpublic personal information to Buyer’s control in connection with the consummation of the transactions contemplated hereby shall not violate any such Laws, privacy policies or commitments.
Appears in 1 contract
Samples: Merger Agreement (Seacoast Banking Corp of Florida)
Intellectual Property. (a) Within ten The Company and the Operating Company own, or have a valid license or other right to use, all of the Intellectual Property used in or necessary for the operation of the Business as currently conducted, in each case free and clear of all Encumbrances other than Permitted Encumbrances (10the “Company Intellectual Property”). Section 5.14(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of (i) all Intellectual Property owned by the Company or any the Operating Company Subsidiary that is the subject of an applicationto any issuance, certificateregistration, filing, registration or other document issued by, filed application with or recorded by any Governmental Authority or domain name registrar Authority; and (the “Registered Intellectual Property”), together with ii) all material unregistered trademarks. To the Company’s Knowledge, all material Registered Company Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesProperty.
(b) To Section 5.14(b) of the Disclosure Schedule contains a list of (i) all licenses granted by the Company or the Operating Company to any third party with respect to any Company Intellectual Property; (ii) all licenses granted by any third party to the Company or the Operating Company with respect to any licensed Company Intellectual Property, excluding “off-the-shelf” or “shrink wrap” software licensed by or to the Company or the Operating Company in the Ordinary Course of Business; and (iii) all other material agreements which otherwise relate to the Company’s Knowledgeownership or right to use any Intellectual Property (the “Company IP Agreements”). Each Company IP Agreement is in full force and effect, the conduct of the business is a valid and binding obligation of the Company or the Operating Company, and, to the Knowledge of Seller, the other party thereto, and is enforceable in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar Laws affecting creditors’ rights generally and general principles of equity). Neither the Company Subsidiaries as it nor the Operating Company, nor, to the Knowledge of Seller, any other party thereto, is currently conducted and planned to be conducted does not infringein breach of, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company default under, or has not provided or received any written allegations notice of breach of, default under, or intention to that effectterminate (including by non-renewal), any Company IP Agreement.
(c) To the Company’s KnowledgeKnowledge of Seller, no third party is currently misappropriating, infringing or otherwise violating any (i) the Company Intellectual Property rights does not include any inventions of any employees made prior to their employment by the Company or any Operating Company Subsidiaryand (ii) all current and former employees who have or had developed Intellectual Property (other than non-trade-secret proprietary information) for the Company or the Operating Company, and all consultants who have been engaged to develop Intellectual Property (other than non-trade-secret proprietary information) for the Company or Operating Company have assigned in writing all of their rights in such Intellectual Property to the Company or the Operating Company.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business The operation of the Company and the Company Subsidiaries Business as it is currently conducted; providedconducted does not infringe, howeverdilute, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriationmisappropriate, or violation otherwise violate the Intellectual Property of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))other Person.
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality Knowledge of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s KnowledgeSeller, no such trade secrets or other material confidential information Person has been disclosed by the Company or is infringing, diluting, misappropriating, or otherwise violating any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonIntellectual Property.
(f) The IT Assets (i) There are in operating order in all material respects no, and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) yearsyears there have been no, experienced legal actions (including any material errors and/or breakdownsopposition, cancellation, revocation, review, or other proceeding), whether settled, pending, or, to the Knowledge of Seller, threatened (including in the form of offers to obtain a license), (i) alleging any infringement, misappropriation, or other violation by the Company or the Operating Company of the Intellectual Property of any Person; (ii) challenging the validity, enforceability, registrability, patentability, or ownership of any Intellectual Property owned by or exclusively licensed to the Company or the Operating Company or challenging the Company’s or the Operating Company’s right, title, or interest in or to any such Intellectual Property; or (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively performor the Operating Company alleging any infringement, in all material respectsmisappropriation, all information technology operations necessary to conduct the businesses or other violation by any Person of the Company and Intellectual Property. To the Company Subsidiaries as they Knowledge of Seller, there are currently conductedno facts or circumstances that could reasonably be expected to give rise to any such legal action.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Power Equipment Group Inc.)
Intellectual Property. (a) Within ten (10) Business Days following the date Schedule 3.11 of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct and complete list of all patents or patents pending or any trademark, tradenames, service xxxx (the “Company Intellectual Property Rights”), and any applications therefor in respect of any of the foregoing, included in the Company Intellectual Property Rights, and specifies, where applicable, the jurisdictions in which each such Company Intellectual Property Right has been issued or registered or in which an application for such issuance and registration has been filed, including the respective registration or application numbers and the names of all registered owners. No claims with respect to the Company Intellectual Property Rights have been asserted against the Company, nor to the knowledge of the Indemnifying Shareholders, are threatened against the Company or have been asserted or threatened against a third party, nor is the Company aware, except as disclosed on Schedule 3.11, of any reasonable basis for any claims (i) against the use by the Company of any trademarks, service marks, trade names, trade secrets, copyrights, patents, technology, know-how or computer software programs and applications used in the Company’s business as currently conducted or (ii) challenging the validity, effectiveness, or ownership by the Company of any of the Company Intellectual Property Rights. All registered patents, trademarks, service marks and copyrights held by the Company are valid and subsisting. To the knowledge of Indemnifying Shareholders, there is no unauthorized use, infringement or misappropriation of any of the Company Intellectual Property Rights owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority third party, including any employee or domain name registrar (former employee of the “Registered Intellectual Property”), together with all material unregistered trademarksCompany. To the Company’s Knowledgeknowledge of the Indemnifying Shareholders, all material Registered No Company Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business Right or product of the Company and is subject to any outstanding decree, order, judgment, or stipulation restricting in any manner the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and licensing thereof by the Company. The Company has not received entered into any written allegations to that effect.
(c) To agreement under which the Company’s KnowledgeCompany is restricted from selling, no third party is currently misappropriating, infringing licensing or otherwise violating distributing any Intellectual Property rights of its products to any class of customers, in any geographic area, during any period of time or in any segment of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person market other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personas set forth in Schedule 3.9.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (a) Within ten (10) Business Days following The Company owns, or is licensed or otherwise possesses legally enforceable rights to use, all patents, trademarks, trade names, service marks, copyrights, and any applications therefor, technology, know-how, trade secrets, computer software programs or applications and tangible or intangible proprietary information or material and other intellectual property rights that are used in the date business of this Agreement, the Company shall provide Parent with as currently conducted, except where the failure to do so would not have a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesMaterial Adverse Effect.
(b) To Except as disclosed in Section 2.18(b) of the Company Disclosure Schedule, or where such event does not and cannot reasonably be expected to have a Material Adverse Effect: (i) the Company is not, nor will it be as a result of the execution and delivery of this Agreement or the performance of its obligations hereunder, in violation of any licenses, sublicenses and other agreements as to which the Company is a party and pursuant to which the Company is authorized to use any patents, trademarks, service marks or copyrights or other intellectual property rights owned by others ("Company Third-Party Intellectual Property Rights"); (ii) no claims with respect to the patents, registered and unregistered trademarks and service marks, registered copyrights, trade names and any applications therefor or other intellectual property rights owned by the Company (the "Company Intellectual Property Rights"), any trade secret material to the Company’s Knowledge, or Company Third Party Intellectual Property Rights to the conduct extent arising out of any use, reproduction or distribution of Company Third Party Intellectual Property Rights by or through the Company, are currently pending or, to the Company's knowledge, have been threatened by any Person; and (iii) the Company does not know of any valid grounds for any bona fide claims (1) to the effect that the sale, licensing or use of any product or service as now sold, licensed or used, or proposed for sale, license or use by the Company infringes on any intellectual property rights of a third-party including copyright, patent, trademark, service xxxx or trade secret; (2) against the use by the Company of any intellectual property including trademarks, trade names, trade secrets, copyrights, patents, technology, know-how or computer software programs and applications used in the business of the Company and as currently conducted or as proposed to be conducted; (3) challenging the ownership, validity or effectiveness of any of the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights Rights or other trade secret material to the Company; or (4) challenging the license or legally enforceable right to use of any third party and Company Third Party Intellectual Rights by the Company has not received any written allegations to that effectCompany.
(c) To the Company’s Knowledge's knowledge, there is no third party is currently misappropriatingmaterial unauthorized use, infringing infringement or otherwise violating misappropriation of any Intellectual Property rights of the Company Intellectual Property Rights by any third party, including any employee or any Company Subsidiaryformer employee of the Company.
(d) Except as Set forth in Section 2.18(d) of the Company Disclosure Schedule is a complete and accurate list of (i) all patents and patent applications owned by the Company worldwide; (ii) all trademark and service xxxx registrations and all trademark and service xxxx applications and all trade names owned by the Company worldwide; (iii) all copyright registrations and copyright applications owned by the Company worldwide; and (iv) all licenses owned by the Company in which the Company is (A) a licensor with respect to any of the patents, trademarks, service marks, trade names or copyrights listed in the Disclosure Schedule, or (B) a licensee of any other person's patents, trade names, trademarks, service marks or copyrights. The Company has made all necessary filings and recordations to protect and maintain its interest in the patents, patent applications, trademark and service xxxx registrations, trademark and service xxxx applications, trade names, copyright registrations and copyright applications and licenses set forth in the Disclosure Schedule, except where such failure to file or record has not had, and would could not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To The Company shall ensure that any software products or services owned, provided or otherwise developed by the Company’s Knowledge, or used in the conduct of the Company's business as presently conducted and as it is expected to be conducted after the date of this Agreement, whether in whole or in part, by or for the Company, which incorporate any date- related information or otherwise process any date-related information, will, on the Effective Date, provide, among other things, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets following functionality: (i) are in operating order in all material respects accurate processing of date- related information before, during and are fulfilling after January 1, 2000, including accepting the purposes for which they were acquireddate input, licensed providing the date output, and performing calculations on dates or established in an efficient manner without material downtime or errors, portions of dates; (ii) have notaccurate functioning without interruption before, during and after January 1, 2000 without any change in operation associated with the past three (3) years, experienced any material errors and/or breakdowns, advent of the new century; (iii) ability to the Company’s Knowledgerespond to two-digit input in a way that resolves any ambiguity as to century in a disclosed, do not contain Unauthorized Code, defined and predetermined manner; and (iv) the ability to store and provide output date information in ways that are unambiguous as to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conductedcentury.
Appears in 1 contract
Intellectual Property. a. Section 3.17(a) of the Company Disclosure Schedule contains a true, complete and accurate list of all (ai) Within ten Patents owned by or exclusively licensed to the Company and the Subsidiaries (10“Company Patents”), registered Marks owned by or exclusively licensed to the Company or any Subsidiary (“Company Marks”) Business Days following and registered Copyrights owned by or exclusively licensed to the Company or any Subsidiary (“Company Copyrights”), (ii) Licenses-In, (iii) Licenses-Out, and (iv) products, computer programs and/or services currently being manufactured, performed, licensed, sold, distributed and/or otherwise made commercially available by the Company or any Subsidiary (the “Products”).
b. 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 to the Company's knowledge as of the date of this Agreement, no claim is pending or has been asserted in writing to the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted infringes upon or may infringe upon or misappropriates the Intellectual Property Rights of any third party.
c. With respect to each item of Intellectual Property owned by the Company or a Subsidiary (“Company Owned Intellectual Property”), (i) the Company or a Subsidiary is the owner of the entire right, title and planned interest in and to be such Company Owned Intellectual Property and is entitled to use such Company Owned Intellectual Property in the continued operation of its respective business without any limitations or restrictions (other than those imposed by applicable Laws), and (ii) to the Company's knowledge as of the date of this Agreement the Company Owned Intellectual Property is valid and enforceable, and has not been adjudged invalid or unenforceable in whole or in part.
d. With respect to each item of Intellectual Property licensed to the Company or a Subsidiary (“Company Licensed Intellectual Property”), (i) to the Company's knowledge as of the date of this Agreement, the Company or a Subsidiary has all necessary rights to use such Company Licensed Intellectual Property in the continued operation of its respective business as presently conducted does not infringein accordance with the terms of the license agreement governing such Company Licensed Intellectual Property, misappropriate and, (ii) to the knowledge of the Company as of the date of this Agreement, (A) such Company Licensed Intellectual Property is valid and enforceable, (B) such license agreement is binding on all parties to such license and is in full force and effect, and (C) no party to such license of the Company Licensed Intellectual Property is in material breach thereof or otherwise violate material default thereunder.
e. To the knowledge of the Company as of the date of this Agreement, no person is engaging in or, during the three (3) year period preceding the date of this Agreement, has engaged in any activity that infringes upon the Company Owned Intellectual Property, nor has there been any misappropriation by any person or entity of any of the Company Owned Intellectual Property, and neither the Company nor any of the Subsidiaries have received any notice of such activities.
f. All of the Key IP Employees, and all former and current employees, consultants and contractors of the Company and the Subsidiaries who have been materially involved in the development of Company Owned Intellectual Property or Products during the preceding five (5) years or who have been involved in the development of any current Products, have executed written instruments with the Company or such Subsidiary that assign to the Company or such Subsidiary all rights, title and interest in and to any and all inventions, improvements, discoveries, writings and other works of authorship, and information developed by such employees, consultants, and contractors within the scope of their engagement by the Company or its Subsidiaries and Intellectual Property rights relating thereto; and in each case where a Company Patent is owned by the Company or any Subsidiary by assignment, the assignment has been duly recorded with the U.S. Patent and Trademark Office and all similar offices and agencies anywhere in the world in which foreign counterparts owned by the Company or any Subsidiary are registered or issued.
g. Neither the execution of this Agreement nor the consummation of any third party Transaction shall adversely affect any of the Company's rights with respect to any Company Owned Intellectual Property or the termination of the Company's license rights to any Company Licensed Intellectual Property that is material to the business of the Company as currently conducted.
h. Neither the Company nor any Subsidiary has granted any current or contingent right, license or interest in or to the source code of the Products, and, since the Company and the Subsidiaries developed the source code of the Products, neither the Company nor any Subsidiary has not received provided or disclosed the source code of the Products to any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing person or otherwise violating any Intellectual Property rights entity other than an employee of the Company or any Subsidiary or a contractor performing services for the benefit of the Company or any Subsidiary, in each case such disclosure being subject to valid and enforceable confidentiality restrictions.
(d) i. Except as has not had, and would not reasonably be expected to havenot, individually or in the aggregate, produce a Company Material Adverse Effect, the Company Products perform in accordance with their documented specifications and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of as the Company and the Company Subsidiaries have warranted to their customers.
j. To the Company's knowledge as it is currently conducted; providedof the date of this Agreement, however, the Products do not contain any “viruses,” “worms,” “time‑bombs,” “key-locks,” or any other devices that are designed to maliciously disrupt or interfere with the foregoing representation and warranty in this Section 4.21(d) shall not constitute operation of the Products or be deemed or construed as any representation or warranty with respect to infringement, misappropriationequipment upon which the Products operate, or the integrity of the data, information or signals the Products produce in a manner adverse to the Company, any Subsidiary or any customer, licensee or recipient.
k. The Company has not, in connection with the Products currently being sold, licensed or distributed by the Company or by any Subsidiary: (i) distributed Open Source Materials in violation of the applicable license to such Open Source Materials in conjunction with any other software developed or distributed by the Company; or (ii) used Open Source Materials in a manner that creates, or purports to create, obligations for the Company to grant to any third party, any rights or immunities under Company Owned Intellectual Property rights (which is addressed including, but not limited to, using any Open Source Materials in Section 4.21(ba manner that requires, as a condition of such use, that other software incorporated into, derived from or distributed with such Open Source Materials be (A) and Section 4.21(c)).
disclosed or distributed in source code form, (eB) To licensed for the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality purpose of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries making derivative works or (and any confidential information owned by any Person to whom the Company C) redistributable at no charge or any of the Company Subsidiaries has a confidentiality obligationminimal charge). To the Company’s KnowledgeAs used herein, no such trade secrets “Open Source Materials” means all software, documentation or other material confidential information has been disclosed by that is distributed as “free software,” “open source software” or under a similar licensing or distribution model, including, but not limited to, the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in license described as an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered “Open Source License” by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries Open Source Initiative as they are currently conducted.set forth on xxx.xxxxxxxxxx.xxx
Appears in 1 contract
Samples: Merger Agreement (Athenahealth Inc)
Intellectual Property. (a) Within ten (10) Business Days following the date The Company has sole title to and ownership of this Agreementor possesses legally enforceable rights to use under valid and subsisting written license agreements, all Company Intellectual Property Rights, and the Company shall provide Parent has not misappropriated, is not in conflict with a correct and complete list of all is not infringing upon the Intellectual Property owned by Rights of others. The Company is the sole and exclusive owner of the Company or Intellectual Property Rights, free and clear of any Company Subsidiary that is the subject of an application, certificate, filing, registration Encumbrances or other document issued byrights or claims of others, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered except for Third Party Intellectual Property”), together with all material unregistered trademarksProperty Rights. To the Company’s KnowledgeKnowledge of the Seller Parties, all material Registered none of the Company Intellectual Property has been maintained effective Rights is being infringed by the filing of all necessary filingsactivities, maintenance and renewals and timely payment of requisite feesproducts or services of, or is being misappropriated by, any third party.
(b) To Schedule 3.17(b) lists (i) all patents and patent applications (including provisional applications, continuations and continuations-in-part) and all registered trademarks, service marks, domain names, trade names, fictitious names, service marks and copyright registrations owned by the Company, including the jurisdictions in which each item has been issued or registered or in which such application has been filed, and all material unregistered trademarks owned by the Company; (ii) all material items of Third Party Intellectual Property Rights; and (iii) all agreements or other arrangements under which the Company has provided or agreed to provide or make available object or source code to any Product to any third party, including, without limitation, to end-users (other than pursuant to the Company’s Knowledgestandard form of end-user license or service agreements with its customers, true, correct and complete copies of which have been provided to the Buyer). The Company has made available to the Buyer correct and complete copies of all registrations and applications and all licenses, sublicenses and agreements relating to the Company Intellectual Property Rights, each as amended to date. The Company is not a party to any oral license, sublicense or other agreement which, if reduced to written form, would be required to be listed in Schedule 3.17(b) under the terms of this Section 3.17(b). Each registration relating to Company Intellectual Property Rights (excluding Third Party Intellectual Property Rights) was properly registered and is in good standing and enforceable under applicable Laws, and except as set forth on Schedule 3.17(b)(i), no renewal, fee, payment or other actions are required to be taken with respect to any registration within six (6) months after the date hereof. Schedule 3.17(b) lists, for each application relating to the Company Intellectual Property Rights (other than Third Party Intellectual Property Rights), the conduct current status of each application and the next steps required to be taken in connection with such application. The Company has made available to the Buyer copies of the business of the Company Company’s license agreements and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectservice agreements with its customers.
(c) To the Company’s KnowledgeExcept as set forth in Schedule 3.17(c), no third party is currently misappropriating, infringing or otherwise violating any with respect to each item of Third Party Intellectual Property rights Rights and the sale, distribution and licensing of the Company Products, there are no royalty, commission or any Company Subsidiaryother executory payment agreements, arrangements or understandings relating to such item.
(d) There are no material errors, omissions, issues or defects in the Products, and there are no material errors in any documentation, specifications, manuals, user guides, promotional material, internal notes and memos, technical documentation, drawings, flow charts, diagrams, source language statements, demo disks, benchmark test results, and other written materials related to, associated with or used or produced in the development of the Products. Except as has not had, and would not reasonably be expected to have, individually or set forth in the aggregate, a Company Material Adverse EffectSchedule 3.17(d), the Company and the Company Subsidiaries own has not made any material oral or are licensed to use, written representations or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty warranties with respect to infringementits Products or services. The Company has not permitted any third party to modify, misappropriation, improve or violation create derivative works of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))the Products owned by the Company.
(e) To There are no source code escrow agreements or arrangements relating to the Company’s Knowledge, Products and Company Intellectual Property Rights to which the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has is a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personparty.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquiredCompany has used commercially reasonable efforts, licensed or established in an efficient manner without material downtime or errors, (ii) have not, customary in the past three industry, on a worldwide basis, to protect and enforce its trade secrets and otherwise to safeguard and maintain the secrecy and confidentiality of all Company Intellectual Property Rights. Except as set forth in Schedule 3.17(f), all officers, employees and consultants of the Company who have had access to proprietary information or Company Intellectual Property Rights have executed and delivered to the Company agreements (3copies of which have been provided to the Buyer) yearsto maintain the confidentiality of the proprietary information and the Company Intellectual Property Rights and to assign to the Company all Intellectual Property Rights arising from the services performed for the Company by such persons. No current or prior officers, experienced employees or consultants of the Company have claimed any material errors and/or breakdowns, (iii) ownership interest in any Company Intellectual Property Rights as a result of having been involved in the development of such property while employed by or consulting to the Company’s Knowledge, do or otherwise. To the Knowledge of any Seller Party, there has been no violation of the policies or practices related to protection of Intellectual Property Rights or any confidentiality or nondisclosure agreement relating to the Company Intellectual Property Rights. Except as set forth in Schedule 3.17(f) and except for the Third Party Intellectual Property Rights, all Company Intellectual Property Rights have been developed by employees of the Company, within the course and scope of their employment. Except as set forth in Section 3.17(e), the Products were not contain Unauthorized Codeconceived or developed outside of the United States.
(g) To the Knowledge of the Seller Parties, (iv) no Person has obtained unauthorized access to third party information and data in the Company’s Knowledgepossession, have not experienced nor has there been any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses other compromise of the Company and the Company Subsidiaries as they are currently conductedsecurity, confidentiality or integrity of such information or data.
Appears in 1 contract
Intellectual Property. (a) Within ten (10Section 3.14(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Disclosure Schedules sets forth a correct true and complete list of all Intellectual Property owned by the Company or patents and patent applications, registered Trademarks and applications to register any Company Subsidiary that is the subject Trademarks, registered copyrights and applications for registration of an applicationcopyrights and domain names (collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”)) that form part of the Business Intellectual Property, together with all material unregistered trademarksin each case, owned by the Group Companies, specifying as to each item (as applicable): the owner(s) of the item, the jurisdiction in which the item is registered or applied to be registered or patented, and the application and/or registration and patent number. To the Company’s Knowledge, all material All Registered Intellectual Property has been maintained effective by is subsisting, and, to the filing Knowledge of all necessary filingsTreehouse, maintenance valid and renewals and timely payment of requisite feesenforceable.
(b) The Sellers (or an Affiliate) or the Group Companies exclusively own and possess all right, title and interest in and to the Business Intellectual Property, and have a valid and enforceable license to use all of the other Intellectual Property used in, held for use in, developed for or otherwise necessary for, the conduct of the Business as currently conducted, in each case, free and clear of all Encumbrances other than Permitted Encumbrances. Following the Closing, the Group Companies will own or have a right to use all such Intellectual Property on terms and conditions identical to those under which the Group Companies owned or used such Intellectual Property immediately prior to the Closing Date, subject to the services to be provided to the Buyer pursuant to the Transition Services Agreement and the Trademarks to be licensed pursuant to the Trademark License Agreement.
(c) The Group Companies use commercially reasonable efforts to maintain the secrecy of their Trade Secrets. To the Company’s KnowledgeKnowledge of TreeHouse, no Trade Secret has been disclosed by the Group Companies to any third Person other than pursuant to a written non-disclosure agreement entered into in the ordinary course of business restricting the disclosure and use of such Trade Secrets, which, to the Knowledge of TreeHouse, has not been breached by any such third Person. All Persons involved in the development of Intellectual Property on behalf of the Group Companies have entered into valid, written Intellectual Property assignment and non-disclosure agreements in favor of a Group Company (or such Group Company owns Intellectual Property developed within the scope of their employment by operation of law), and have waived all moral and non-assignable rights relating thereto.
(d) The conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted Group Companies does not infringe, misappropriate or otherwise violate any Intellectual Property rights of violate, and in the last six years, has not infringed, misappropriated, or otherwise violated any third party and the Company has not received any written allegations to that effect.
(c) Intellectual Property. To the Company’s KnowledgeKnowledge of TreeHouse, no third party is currently misappropriatinginfringing, infringing misappropriating or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not hadviolating, and would not reasonably be expected to have, individually or in the aggregatepast three years, a Company Material Adverse Effecthas infringed, the Company and the Company Subsidiaries own or are licensed to usemisappropriated, or otherwise possess valid rights to use, all violated any material Intellectual Property necessary to conduct owned by the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Group Companies.
(e) To There has been no material failure, breakdown, performance reduction, continued substandard performance or other adverse event affecting any Business Systems in the Company’s Knowledgepast three years that has not been remedied or replaced in all material respects. The Business Systems are in sufficiently good working condition to effectively perform all information technology operations and, together with the Company and services provided to the Company Subsidiaries have taken commercially reasonable measures Buyer pursuant to protect the confidentiality Transition Services Agreement, include a sufficient number of all trade secrets and any other material confidential information licenses as necessary for the operation of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any business of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonGroup Companies.
(f) The IT Assets (i) are in operating order in all material respects Group Companies have taken commercially reasonable actions to protect the confidentiality, integrity and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company Business Systems and the Company Subsidiaries as they are currently conducteddata and other information stored or processed thereon.
Appears in 1 contract
Intellectual Property. (a) Within ten (10) Business Days following the date of this Agreement, the Company shall provide Parent with Schedule 2.21 sets forth a correct and complete list of all each material patent, material registered trademark, material service xxxx or trade name, material registered copyright, internet domain name, material registered mask work, and applications for any of the foregoing (collectively, “Intellectual Property owned Property”) held by the Company or any Company Subsidiary that is of its Subsidiaries as of the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarksdate hereof. To the Company’s Knowledge, all material Registered The Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary sufficient to conduct the business of the Company and its Subsidiaries as it is now being conducted. Except as set forth on Schedule 2.21, to the knowledge of the Company, (i) the Company or one of its Subsidiaries has good and marketable title to each item of Intellectual Property owned by it, free and clear of any Liens other than Permitted Liens and (ii) the Company or one of its Subsidiaries owns or has the right to use pursuant to license, sublicense, agreement or permission all items of Intellectual Property used in the operation of the business of the Company and its Subsidiaries, as such items are currently used. To the knowledge of the Company, the current operations of the Company and its Subsidiaries do not materially conflict with or infringe any proprietary rights owned or possessed by any third Person, or materially violate any license or agreement with any third Person or make the Company or any of its Subsidiaries liable to pay any material fee or royalty other than pursuant to a written license agreement to which the Company or its Subsidiaries are a party. To the knowledge of the Company, neither the Company nor any of its Subsidiaries is infringing in any material respect upon any intellectual property rights of any third Person and there is no material infringement, misappropriation or unauthorized use of the Intellectual Property by any third Person.
(b) To the knowledge of the Company, there are no decrees, orders, judgments, stipulations or settlement agreements restricting in any material respect the Company’s or its Subsidiaries’ use, transfer or licensing of the Intellectual Property.
(c) There are no Actions pending against the Company or any of its Subsidiaries, or to the knowledge of the Company, threatened against the Company or any of its Subsidiaries with respect to any Intellectual Property.
(d) Except as set forth in Schedule 2.21, there are no outstanding encumbrances, options, licenses or agreements of any kind relating to the Intellectual Property, nor is the Company or any of its Subsidiaries bound by or to a third party to grant any encumbrances, options, licenses or agreements of any kind with respect to the Intellectual Property.
(e) The Company and each of its Subsidiaries possess adequate licenses or other rights to use all material software, media, patents, trademarks, trade secrets, service marks, trade names, logos, mask works, product designs and trade dress, copyrights, domain names and websites, inventions and improvements (whether patentable or not), drawings, designs, customers lists, proprietary know how or information, or other rights with respect thereto, which are owned by any third Person and are currently used in and material to the business of the Company or any of its Subsidiaries, and the same are sufficient to conduct the business of the Company and its Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Samples: Merger Agreement (Medical Staffing Network Holdings Inc)
Intellectual Property. (a) Within ten (10Section 3.10(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Partnership Disclosure Schedule contains a correct and complete list of all Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Partnership Registered Intellectual Property has been maintained effective and the jurisdictions where each is registered (if any) and written licenses (other than “shrink wrap” licenses relating to software purchases “off the shelf”) and all of the rights under Contracts granted to the Partnership by third parties pertaining to trademarks, service marks, trade names and registered copyrights which are used in the business as currently conducted by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesPartnership (each a “Software License”).
(b) The Partnership or its Subsidiaries have good and valid title to or possess the rights to use the material Partnership Intellectual Property, free and clear of all Liens other than Permitted Liens, and have paid all material maintenance fees, renewals or expenses related to such material Partnership Intellectual Property.
(c) Except as otherwise would not have a Material Adverse Effect on the Partnership, the Partnership or its Subsidiaries have the rights to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of, license and transfer the Partnership Intellectual Property and have not granted any options or licenses relating to the Partnership Intellectual Property.
(d) To the Company’s KnowledgeKnowledge of the Partnership, neither the use of the material Partnership Intellectual Property nor the conduct of the business of in the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringeordinary course, misappropriate misappropriates, infringes upon or otherwise violate conflicts with any material Intellectual Property rights of any third party and in any material respect. No Party has filed a written claim (or, to the Company Knowledge of the Partnership, threatened to file a claim) during the 12-month period prior to the date hereof against the Partnership or its Subsidiaries alleging that it has not received any written allegations to that effect.
(c) To the Company’s Knowledgeviolated, no third party is currently misappropriating, infringing infringed on or otherwise violating any improperly used the Intellectual Property rights of the Company or any Company Subsidiarysuch Party.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (a) Within ten (10) Business Days following Section 3.14 of the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct true and complete list of (i) all patents and patent applications, registered trademarks and trademark registration applications, registered copyrights and copyright registration applications, and registered domain names included in the Company Intellectual Property, (ii) all Company IP Agreements, other than commercially available off the shelf Software licensed to the Company pursuant to shrink wrap or click wrap licenses, and (iii) other Company Intellectual Property owned by material to the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesBusiness.
(b) To The operation of the Business as currently conducted, the use of the Company Intellectual Property and Licensed Intellectual Property in connection therewith and the Company’s Knowledgeoperation of its web site in connection with the Business, the conduct of the business of the Company content thereof and the Company Subsidiaries as it is currently conducted and planned to be conducted does any advertisements contained therein, do not conflict with, infringe, misappropriate or otherwise violate any the Intellectual Property or other proprietary rights, including rights of privacy, publicity and endorsement, of any third party party, and no Actions or Claims are pending or, to the Knowledge of the Sellers, threatened against any Seller or the Company has not received alleging any written allegations to that effectof the foregoing.
(c) To The Company (i) owns all rights, title and interest in and to the Company’s KnowledgeCompany Intellectual Property, no free and clear of all Encumbrances, and (ii) has a valid right to use, pursuant to a Company IP Agreement, all Licensed Intellectual Property in the ordinary course of the Business as presently conducted. Except as set forth in Section 3.14 of the Disclosure Schedule, the Company is not obligated or under any duty or liability whatsoever to make any payments by way of royalties, fees or otherwise to any third party is currently misappropriating, infringing or otherwise violating with respect to the use of any Intellectual Property rights of the Company Intellectual Property or any Company Subsidiarythe Licensed Intellectual Property.
(d) Except as has not hadNeither any Company Intellectual Property, and would not reasonably be expected nor to havethe Knowledge of the Sellers, individually any Licensed Intellectual Property, is subject to any outstanding decree, order, injunction, judgment or in ruling that either restricts the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all use of such Intellectual Property necessary to conduct or impairs the business validity or enforceability of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any such Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(e) To The Company Intellectual Property and the Company’s KnowledgeLicensed Intellectual Property include all of the Intellectual Property used in the ordinary day-to-day conduct of the Business, and there are no other items of Intellectual Property that are material to the ordinary day-to-day conduct of the Business. The Company Intellectual Property and, to the Knowledge of the Sellers, the Company Licensed Intellectual Property are subsisting, valid and the Company Subsidiaries enforceable, and have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company not been adjudged invalid or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets unenforceable in whole or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personpart.
(f) The IT Assets No Actions or Claims are pending or, to the Knowledge of the Sellers, threatened, against any Seller or the Company (i) are in operating order in all material respects and are fulfilling based upon or challenging or seeking to deny or restrict the purposes for which they were acquired, licensed use by the Company of any of the Company Intellectual Property or established in an efficient manner without material downtime or errorsLicensed Intellectual Property, (ii) have notalleging that any services provided by, in or processes used by the past three (3) yearsCompany, experienced infringe or misappropriate any material errors and/or breakdownsIntellectual Property right of any third party, or (iii) alleging that the Licensed Intellectual Property is being licensed or sublicensed in conflict with the terms of any license or other agreement.
(g) To the Knowledge of the Sellers, no Person is engaging in any activity that infringes the Company Intellectual Property or Licensed Intellectual Property. The Company has not granted any license or other right to any third party with respect to the Company Intellectual Property or Licensed Intellectual Property. The consummation of the transactions contemplated by this Agreement and the Ancillary Agreements will not result in the termination or impairment of or Encumbrance on any of the Company Intellectual Property.
(h) No rights in the Company Software have been transferred to any third party except to the customers of the Company to whom the Company has licensed such Company Software in the ordinary course of business. To the Knowledge of the Sellers, the Client Central Software is free of all viruses, worms, trojan horses and other material known contaminants. No bug, error, or other problem in respect of the Client Central Software has materially disrupted operation of the Client Central Software or had an adverse impact on the operation of other software programs or operating systems used by the Company. As of the Closing, the Company has the right to use all software development tools, library functions, compilers, and other third party software that are required to operate or modify the Client Central Software.
(i) The Company has entered into written non-disclosure arrangements with third parties who have been accorded access to Trade Secrets and other confidential Intellectual Property used in connection with the Business. To the Knowledge of the Sellers, (i) there has been no misappropriation of any material Trade Secrets of the Company by any Person; (ii) no employee, independent contractor or agent of the Company has misappropriated any trade secrets of any other person in the course of performance as an employee, independent contractor or agent of the Company; and (iii) no employee, independent contractor or agent of the Company is in default or breach of any term of any employment agreement, nondisclosure agreement, assignment of invention agreement or similar agreement or contract relating in any way to the protection, ownership, development, use or transfer of Intellectual Property.
(j) No Actions or Claims are pending or, to the Knowledge of the Sellers, threatened, against any Seller or the Company alleging that the Company’s collection or use of any personally identifiable information (“Customer Information”) the Company has obtained from visitors to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to Internet website or otherwise violates the Company’s Knowledge, have not experienced privacy policy or any material security breaches, and (v) are considered by applicable Laws; the Company to effectively performhas collected, maintained and used Customer Information in compliance, in all material respects, with all information technology operations necessary applicable Laws, and to conduct the businesses Knowledge of the Company and Sellers, no Person has gained unauthorized access to any Customer Information held by the Company Subsidiaries as they are currently conductedCompany.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Realty Trust, Inc.)
Intellectual Property. (a) Within ten (10Schedule 3.15(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct true and complete list of the following items which the Company and/or its Subsidiaries own in whole or in part and/or have a valid claim of ownership in whole or in part (such as a contract right of assignment from an employee or independent contractor) (hereinafter referred to as the “Intellectual Property Rights”): (i) all United States and foreign patents and applications therefor; (ii) all patentable inventions which have not yet become the subject of a patent application; (iii) all United States and foreign trademark, trade name, service xxxx, collective xxxx, and certification xxxx registrations and applications therefor at the federal, state, local or foreign level; (iv) all material trademarks, trade names, service marks, collective marks, and certification marks which have been used by the Company or its Subsidiaries in commerce at any time in the last five years; (v) all United States and foreign copyright registrations and applications therefor; and (vi) all domain names, URLs and Internet websites. Schedule 3.15(a) of the Company Disclosure Schedule also sets forth a true and complete list of all Intellectual Property owned by items described in subsections (i) through (iv) of the previous sentence in which the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration its Subsidiaries owns a license or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar otherwise has a right to use (the “Registered Intellectual PropertyLicensed Rights”), together with all and which are material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, to the conduct of the business of the Company and its Subsidiaries taken as a whole. A copy of the Company Subsidiaries as it is currently conducted and planned written agreements with respect to be conducted does not infringethe Licensed Rights has been made available to the Parent. Prior to the date hereof, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations provided Parent with reasonable access to that effect.
(c) To the Company’s Knowledgeand its Subsidiaries’ material trade secrets, no third party is currently misappropriatingproprietary information, infringing or otherwise violating any Intellectual Property rights databases and data. The Company represents and warrants that, except as stated on Schedule 3.15(a) of the Company Disclosure Schedule, (i) the Intellectual Property Rights are free and clear of any liens, claims or encumbrances, are not subject to any Company Subsidiary.
license (droyalty bearing or royalty free); (ii) Except as has not hadthe Licensed Rights are free and clear of any liens, claims, encumbrances, royalties or other obligations; and would not reasonably be expected to have, individually or in (iii) the aggregate, a Company Material Adverse Effect, the Company Intellectual Property Rights and the Company Subsidiaries own or Licensed Rights are licensed to use, or otherwise possess valid all those material rights to use, all Intellectual Property necessary to the conduct of the business of the Company and its Subsidiaries, taken as a whole. The validity of the Intellectual Property Rights and exclusive title thereto and validity of the Licensed Rights, (i) have not been questioned, since May 1, 2002, in any suit, action, claim or administrative, arbitration or other proceeding; (ii) are not being questioned in any pending suit, action, claim or administrative, arbitration or other proceeding; and (iii) to the Knowledge of the Company, are not the subject(s) of any threatened or proposed suit, action, claim or administrative, arbitration or other proceeding. To the Knowledge of the Company, the Intellectual Property Rights are valid, enforceable and in full force and effect. To the Knowledge of the Company, no Person other than the Company Subsidiaries or any Subsidiary has or has made any claim of ownership or right to use any of the Intellectual Property Rights that are owned by the Company and/or its Subsidiaries, other than those Persons who are authorized licensees under the Intellectual Property Rights. Except as it is currently conducted; provideddisclosed on Schedule 3.15(a) of the Company Disclosure Schedule, however, that neither the foregoing representation and warranty in this Section 4.21(d) shall not constitute Company nor any Subsidiary has received any written notices or be deemed claims which allege infringement or construed as any representation or warranty with respect to infringement, misappropriation, or violation misappropriation of any Intellectual Property patents, trademarks, trade names, service marks, copyrights or other intellectual property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) owned or licensed by any other Person. To the Knowledge of the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality business of all trade secrets and any other material confidential information each of the Company and its Subsidiaries, as presently conducted, does not materially conflict with and has not been alleged to materially conflict with any patents, trademarks, trade names, service marks, copyrights or other intellectual property rights of others. The consummation of the transactions contemplated hereby will not result in the loss or impairment of any of the material Intellectual Property Rights or the Company’s or it’s Subsidiaries’ right to use any of the material Licensed Rights. To the Knowledge of the Company, there are no third parties using any of the Intellectual Property Rights material to the business of the Company or its Subsidiaries as presently conducted.
(b) Schedule 3.15(b) of the Company Disclosure Schedule contains a true and complete list of all material computer programs and software and related data necessary to perform, as presently performed, the specific applications and operations which are material to the operation of the business as presently conducted by each of the Company and its Subsidiaries, including but not limited to products, manufacturing processes and internal business operations, excluding off the shelf software (the “Business Technology”). Part 1 of Schedule 3.15(b) of the Company Disclosure Schedule sets forth all Business Technology owned by the Company and/or its Subsidiaries and used in the business of the Company and its Subsidiaries; Part 2 of Schedule 3.15(b) of the Company Disclosure Schedule sets forth all Business Technology licensed by the Company and/or its Subsidiaries and used in the business of the Company and its Subsidiaries. All Business Technology is either exclusively owned by the Company and/or its Subsidiaries or is licensed pursuant to a written licensing agreement by or on behalf of the Company and/or its Subsidiaries, which licensing agreement has been made available to the Parent. To the Knowledge of the Company, each such license agreement is a valid and binding agreement and is in full force and effect with respect to the Company or its Subsidiaries, as the case may be. To the Knowledge of the Company, none of the Company, its Subsidiaries, or any other party thereto is in default under the terms of any such licensing agreement. The Company has not received notice of any pending or threatened bankruptcy, insolvency or similar proceeding with respect to any other party to any such licensing agreement. Unless otherwise indicated on Schedule 3.15(b) of the Company Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of the right to utilize any of the Business Technology licensed by the Company and/or its Subsidiaries and used in the business of the Company or its Subsidiaries (i) for the uses in which it is employed and any confidential information owned by any Person (ii) at a site other than the site at which it is currently utilized, in each case without the necessity of obtaining consent from or paying a fee to whom another Person. There are no infringement suits, actions or proceedings pending or, to the Knowledge of the Company, threatened against the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets Subsidiary with respect to any Business Technology owned or other material confidential information has been disclosed licensed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonSubsidiary.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (a) Within ten (10Section 4.16(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Letter sets forth a correct and complete list of all Owned Intellectual Property owned by the Company or any Company Subsidiary that is the subject of registered, or for which an applicationapplication for registration is pending, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesAuthority.
(b) The Company Group owns all Owned Intellectual Property free and clear of all Liens, other than Permitted Liens. To the Company’s Knowledge, the conduct Knowledge of the business Company, no government funds were used in the development of any Owned Intellectual Property. No Owned Intellectual Property was first conceived, used or reduced to practice under a Contract with a Governmental Authority. All licenses for material software used in the operations of the businesses of the Company and Group as presently conducted are in the name of one of the Members of the Company Subsidiaries Group. No exclusive license rights to use any material Owned Intellectual Property have been granted to third parties or to a Governmental Authority under any Material Contracts.
(c) Section 4.16(c) of the Company Disclosure Letter sets forth a correct and complete list of all Contracts governing Licensed Intellectual Property necessary for the operation of the businesses of the Company Group as it is currently presently conducted and planned (excluding licenses for “off the shelf” or other commercially available software). Except as set forth in Section 4.16(c) of the Company Disclosure Letter, a member of the Company Group has the right to be use all Licensed Intellectual Property necessary for the operation of the businesses of the Company Group as presently conducted, subject to the terms of the Company IP Agreements governing such Licensed Intellectual Property.
(d) The use of the Owned Intellectual Property by the Company Group in connection with the operation of its businesses as presently conducted does not not, to the Knowledge of the Company, infringe, misappropriate or otherwise violate any the Intellectual Property rights of any third party and other Person in any material respect. There is no Action initiated by any other Person pending or, during the Company has not received past two (2) years, threatened in writing against any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights member of the Company or Group alleging any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to such material infringement, misappropriation, misappropriation or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))violation.
(e) To the Knowledge of the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and no Person is engaging in any other activity that infringes, misappropriates or otherwise violates any material confidential information Owned Intellectual Property. No member of the Company and Group has threatened in writing during the Company Subsidiaries past two (and any confidential information owned by any Person to whom the Company 2) years or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or initiated against any other material confidential information by Person any Action alleging any such Personinfringement, misappropriation or violation.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (a) Within ten Schedule 3.16(a) sets forth a true, complete and accurate list of (10i) Business Days following the date all registered and unregistered Intellectual Property of this Agreement, the Company shall provide Parent with a correct and complete list the Subsidiary, specifies whether such Intellectual Property is owned by, licensed to, or otherwise held by or for the benefit of the Company or the Subsidiary and indicates the status (completed or in process) of all patents, patent applications, trademarks, trademark applications and registrations, copyrights, copyright applications and registrations, invention disclosure, intent to use applications or other registrations or applications relating to any Intellectual Property and (ii) all licenses and sublicenses granted by or to the Company and the Subsidiary with respect to any Intellectual Property.
(b) Each of the Company and the Subsidiary owns, free and clear of all Liens, or has the right to use, all Intellectual Property set forth on Schedule 3.16(a). Such Intellectual Property constitutes all of the Intellectual Property necessary to the conduct of the respective businesses of the Company and Subsidiary as currently conducted. With respect to Intellectual Property owned by the Company or any Subsidiary, the Company or Subsidiary that is the subject sole owner of an applicationall right, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered title and interest therein and each item of such Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance is valid and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectenforceable.
(c) To Except as set forth on Schedule 3.16(c), (i) none of the Company or Subsidiary is in default (or with the giving of notice or lapse of time or both, would be in default) under any license to use any Intellectual Property, (ii) to the Knowledge of the Company’s Knowledge, no Intellectual Property necessary to the conduct of the respective businesses of the Company and Subsidiary as currently conducted is being infringed by any third party or has been infringed by any third party in the past and (iii) to the Knowledge of the Company, none of the Company or Subsidiary has or is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiarythird party.
(d) Except as has not hadset forth on Schedule 3.16(d), and would not reasonably be expected (i) there is no pending or, to havethe Knowledge of the Company, individually threatened, claim or in dispute regarding the aggregateownership of, a Company Material Adverse Effector use by, the Company or Subsidiary of any Intellectual Property, (ii) the execution and delivery of this Agreement and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all consummation of the transactions contemplated hereby will not result in the loss of use of any Intellectual Property necessary to the conduct of the business respective businesses of the Company and Subsidiary as currently conducted and (iii) to the Company Subsidiaries as it Knowledge of the Company, there is currently conducted; provided, however, no fact or circumstance existing that would render the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as right to use any representation or warranty with respect to infringement, misappropriation, or violation of any the Intellectual Property rights (which is addressed in Section 4.21(bset forth on Schedule 3.16(a) and Section 4.21(c))unenforceable or invalid.
(e) To the Company’s Knowledge, the The Company and the Company Subsidiaries Subsidiary have taken commercially reasonable measures all reasonably necessary action to maintain and protect (i) their rights relating to the confidentiality of all Intellectual Property set forth on Schedule 3.16(a) and (ii) the secrecy, confidentiality, value and the rights in the trade secrets and any other material confidential information of the Company and Subsidiary. The Company and Subsidiary have paid all fees and made all maintenance filings which have heretofore become due to any Governmental Authority with respect to their Intellectual Property. The Company and Subsidiary own all right, title and interest in any Intellectual Property created or developed by their current and former employees and officers within the Company Subsidiaries (and scope of their employment as works made for hire. To the extent any confidential information owned by any Person to whom Intellectual Property of the Company or Subsidiary was created or developed by independent contractors or consultants, such parties have assigned in writing all right, title, interest and ownership of such Intellectual Property to the Company or Subsidiary (as applicable). Copies of the Company’s and the Subsidiary’s confidentiality and Intellectual Property assignment agreements (to the extent any exist) have been made available to the Purchaser. To the Knowledge of the Company, there has been no violation or waiver of such assignment agreements or confidentiality agreements, or unauthorized disclosure or use of any trade secret or Intellectual Property of the Company Subsidiaries has a confidentiality obligation)or Subsidiary. To the Knowledge of the Company, there has been no security breach relating to, no violation of any security policy regarding, and no unauthorized access to, the Company’s Knowledge, no such trade secrets and the Subsidiary’s confidential and proprietary data or other material any confidential information has been disclosed by data used in the businesses of the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonSubsidiary.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they Subsidiary maintain policies and procedures regarding data security and privacy that are currently conductedcommercially reasonable and in compliance with all obligations to their customers and under applicable Law.
Appears in 1 contract
Intellectual Property. (a) Within ten Section 3.11(a) of the Disclosure Schedules lists all registrations and applications for registration of Company Intellectual Property. Section 3.11(a) of the Disclosure Schedules lists any third party claims pending against Company before any court, tribunal (10including the United States Patent and Trademark Office (“PTO”) Business Days following or equivalent authority anywhere in the date world) directed to any of this Agreement, the Company shall provide Parent with a correct and complete list Intellectual Property. To the Knowledge of the Company, all registered Company Intellectual Property owned is valid, subsisting and enforceable and in compliance with all formal legal requirements (including payment of filing, examination and maintenance fees and proofs of use). There are no actions that must be taken by the Company within 120 days of the Closing Date, including the payment of any registration, maintenance or renewal fees or the filing of any responses to PTO office actions, documents, applications or certificates for the purpose of obtaining, maintaining, perfecting or preserving or renewing any registered Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Knowledge of the Company’s Knowledge, all material Registered no facts or circumstances exist that would render any registered Company Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesinvalid or unenforceable.
(b) Except as set forth on Section 3.11(b) of the Disclosure Schedules, the Company owns the exclusive right, title and interest in all Company Intellectual Property, or, to the Knowledge of the Company, has the right to use pursuant to a valid license all other material Intellectual Property used by the Company, and in each case free and clear of all Liens. Except as set forth on Section 3.11(b) of the Disclosure Schedules, during the three year period ending as of the Closing Date, the Company has not transferred ownership of, or granted any exclusive license of or right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Intellectual Property that is or was material Company Intellectual Property, to any other Person. Each Person, including each past and present employee, independent contractor or consultant, who conceived, developed or created or participated in creating any part of any material Company Intellectual Property for or on behalf of the Company, has executed a valid and, to the Knowledge of the Company, enforceable agreement with the Company, as applicable, that (i) conveys to the Company any and all right, title and interest in and to all Intellectual Property developed or contributed to by such Person in connection with such Person’s engagement with the Company, (ii) requires such Person, during and after the term of employment or Contract, to cooperate with the Company in the prosecution of any application to register or protect any Intellectual Property filed in connection with such Intellectual Property, and (iii) obligates the employee, consultant or independent contractor to keep any confidential information of the Company, including Trade Secrets, confidential both during and, for a reasonable time, after the term of employment or Contract.
(c) To the Knowledge of the Company’s Knowledge, the conduct of the Company’s business or any act, product, technology or service (including products, technology or services currently under development) of the Company has not and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate misappropriate, or otherwise violate any Intellectual Property rights of any third party in any Intellectual Property (including the right to privacy or publicity), or constitute unfair competition or trade practices under any Law, and the Company has not received any written allegations notice of any of the foregoing. There are no current or, to the Knowledge of the Company, threatened Actions or claims contesting the ownership, use, validity or enforceability of any Company Intellectual Property, or claiming that effect.
(c) the Company has infringed, violated, or misappropriated the Intellectual Property of any third party nor, to the Knowledge of the Company, are there any facts or circumstances that would form the basis for any claim of infringement or unauthorized use by any Person against the Company, or challenging the ownership, use, validity or enforceability of any Company Intellectual Property. To the Knowledge of the Company’s Knowledge, there is no continuing infringement, violation or misappropriation by any third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company SubsidiaryIntellectual Property.
(d) Except The Company has used its reasonable business judgment in determining when to take commercially reasonable measures to protect and maintain the confidentiality and value of Trade Secrets and other confidential information used or held for use in connection with the operation of its business as has not had, and would not reasonably currently conducted or proposed to be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information The consummation of the transactions contemplated by this Agreement will not result in Company and losing any right to any Intellectual Property. Neither this Agreement nor the Company Subsidiaries consummation of the transactions contemplated by this Agreement will result in (and any confidential information owned by any Person to whom i) the Company or the Purchaser granting to any third party any right with respect to any Intellectual Property owned by, or licensed to, any of them, (ii) either the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledgeor Purchaser being bound by, no such trade secrets or subject to, any noncompete or other material confidential information has been disclosed restriction on the operation or scope of their respective businesses, or (iii) either the Company or Purchaser being obligated to pay any royalties or other amounts to any third party in excess of those payable by the Company or any Company Subsidiaries prior to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonClosing.
(f) The IT Assets owned, used or held for use by the Company (ithe “Company IT Assets”) are in operating order adequate for, and operate and perform in all material respects in accordance with their documentation and are fulfilling functional specifications and otherwise as required in connection with, the purposes for which they were acquiredoperation of the business of the Company as currently conducted. The Company IT Assets have not materially malfunctioned or failed and do not contain any viruses, licensed worms, trojan horses, bugs, faults or established in an efficient manner without material downtime or other devices, errors, contaminants or effects that (i) materially disrupt or adversely affect the functionality of any Company IT Assets or other Software or Technology, except as disclosed in their documentation, or (ii) have notenable or assist any Person to access without authorization any Company IT Assets. The Company has implemented reasonable backup, security and disaster recovery technology consistent with industry practices, and, to the Knowledge of the Company, no Person has gained unauthorized access to any Company IT Assets within the past two (2) years.
(g) The Company maintains policies and procedures regarding data security, privacy, and personal information that are commercially reasonable and, in the past three (3) yearsany event, experienced any comply in all material errors and/or breakdowns, (iii) respects with all obligations to the Company’s Knowledge, do not contain Unauthorized Code, (iv) its customers or to the Company’s Knowledge, have not experienced any material security breachesother data subjects, and (v) are considered with all applicable Laws. The use and dissemination of personal information by the Company to effectively perform, is in compliance in all material respectsrespects with applicable privacy policies, all information technology operations necessary terms of use, customer agreements and applicable Law. The transactions contemplated to conduct be consummated hereunder as of the businesses of Closing will not violate any agreement between the Company and any third party with regard to the Company Subsidiaries as they are currently conducteduse, dissemination or transfer of any personal information. To the Knowledge of the Company, there has been no security breach relating to, no violation of any security policy regarding, and no unauthorized access to or unauthorized use of, any personal information stored by or on behalf of the Company.
Appears in 1 contract
Intellectual Property. (a) Within ten Section 3.16(a) of the Company Disclosure Letter sets forth the following that are owned by or filed on behalf of, in the name of or former name of, the Company or its Subsidiaries (10i) Business Days following all Registered Intellectual Property (the “Company Registered Intellectual Property”), (ii) all domain names, (iii) all material unregistered trademarks and service marks, and (iv) any proceedings or actions before any court or tribunal (including the United States Patent and Trademark Office (the “PTO”) or equivalent authority anywhere in the world) in which any of the Company Registered Intellectual Property is involved. The Company and its Subsidiaries are current in the payment of all necessary registration, maintenance and renewal fees in connection with such Company Registered Intellectual Property.
(b) Section 3.16(b)(i) of the Company Disclosure Letter lists all products, Software and services currently offered or distributed, sold or licensed by or on behalf of the Company and any of its Subsidiaries (“Company Products”). Except as set forth in Section 3.16(b) (ii) of the Company Disclosure Letter, the Company owns all material Software components making up or used in the Company Products, and all Intellectual Property Rights therein.
(c) Section 3.16(c)(i) of the Company Disclosure Letter is a complete list (including the names of the parties) of all Contracts that are in effect as of the date of this AgreementAgreement under which the Company or any of its Subsidiaries is granted a right or license to any third party’s Intellectual Property Rights (“In-Licenses”) that are material to the operation of the Company’s business (other than licenses and related services agreements for commercially available technology or Intellectual Property Rights and non-disclosure agreements and consulting agreements entered into in the ordinary course of business). Section 3.16(c)(ii) of the Company Disclosure Letter is a complete list (including the names of the parties) of all material Contracts that are in effect as of the date of this Agreement under which the Company or any of its Subsidiaries has granted to any third party any licenses or rights under any Company Intellectual Property (“Out-Licenses”, together with In-Licenses, “Company Intellectual Property Agreements”), other than the Material Customer Agreements or any other customer, developer and reseller licenses, service agreements, and other agreements entered into in the ordinary course of business (including in the course of the licensing of any Company products or provision of any services by Company or its Subsidiaries). Company is not, none of the Company’s Subsidiaries are, and to the Knowledge of the Company, no third parties to the Company Intellectual Property Agreements, are, in material breach thereof. To the Knowledge of the Company, there are no material pending or threatened in writing disputes regarding the scope of any Company Intellectual Property Agreements or the performance of the parties under such Company Intellectual Property Agreements.
(d) The Company and its Subsidiaries own and possess all right, title and interest in and to all of the Intellectual Property Rights set forth or required to be set forth in Section 3.16(a). The Company Intellectual Property is free and clear of all liens other than Permitted Liens. To the Knowledge of the Company, the Company shall provide Parent with a correct and complete list of all Intellectual Property and Intellectual Property Rights licensed by the Company or any of its Subsidiaries, respectively, is sufficient for the operation of its and their respective businesses. Neither the Company nor any of its Subsidiaries has transferred ownership of, or granted any exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Company Intellectual Property, to any other person.
(e) The Company and each of its Subsidiaries has taken commercially reasonable steps to protect the confidentiality of material confidential information that they wish to, or are obligated by third parties to, protect as Trade Secrets, and, to the Knowledge of the Company, there is no misappropriation from the Company of material Trade Secrets by any third party. To the Knowledge of the Company, third parties having had or currently having access to any part of the source code of a Company Product have maintained and will continue to maintain such Software source code and related information as material confidential information, using at least reasonable efforts to protect the confidentiality of such source code and related information.
(f) To the Knowledge of the Company, (i) no Person is infringing, misappropriating or otherwise violating any Company Intellectual Property to the extent that such action has caused the Company to lose material customer business and (ii) the operation of the Company’s or its Subsidiaries’ business has not and does not as currently conducted infringe upon, misappropriate, or otherwise violate the Intellectual Property Rights of any third party where such infringement, misappropriation or violation would materially adversely effect the current operations or products of the Company or its Subsidiaries.
(g) Except as set forth in Section 3.16(g) of the Company Disclosure Letter, no Company Product is subject to any obligation or condition under any Open Source license in a manner that would result in the Company being obligated to license material Software source code that is owned by the Company or any Company Subsidiary that is of its Subsidiaries as a condition to such Open Source license under the subject terms of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesOpen Source License.
(bh) To the Company’s Knowledge, the conduct of the business Section 3.16(h) of the Company Disclosure Letter is a complete list of all Governmental Entities with which the Company or its Subsidiaries, acting as primary contractor, have entered into material Out-Licenses.
(i) Neither the Company nor any of its Subsidiaries is a party to any agreement whereby the execution and delivery of this Agreement and the consummation of the Merger will result in (i) the Company or its Subsidiaries as it is currently conducted and planned granting to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party any additional or new rights or licenses to any material Company Intellectual Property under any Company Intellectual Property Agreement that were not granted prior to the execution and delivery of this Agreement, (ii) the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no termination or cancellation by a third party is currently misappropriating, infringing or otherwise violating of any material Company Intellectual Property rights Agreement that would not have been terminated or cancelled absent execution and delivery of this Agreement, or (iii) the imposition of any Lien on any material Company Intellectual Property that would not have been imposed absent execution and delivery of this Agreement, except where any of the Company or any Company Subsidiary.
foregoing (din clauses (i) Except as has not had, and through (iii)) would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, the .
(j) The Company and its Subsidiaries have taken all commercially reasonable steps to safeguard the Company Subsidiaries own or are licensed internal and external integrity of the IT Assets and the data that the IT Assets contain (including the data of their customers and vendors). With respect to usethe IT Assets, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business Knowledge of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects there have been no unauthorized intrusions or breaches of security, and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, there has not been any material malfunction in the past preceding three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do years that has not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, been remedied or replaced in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (a) Within ten (10) Business Days following the date of this AgreementExcept as set forth on Schedule 3.17, the Company shall provide Parent owns, or is licensed or otherwise entitled to exercise all rights under or with a correct respect to all United States and complete list of all Intellectual Property owned by foreign patents, patent applications, trademarks, trade names, service marks, copyrights, and any applications therefor, formulae, processes, designs, schematics, compositions, ideas, technology, know-how and tangible or intangible proprietary information, trade secrets or materials employed in the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct operation of the business of the Company and the Company Subsidiaries as it is currently conducted and planned or as currently proposed to be conducted does not infringe, misappropriate or otherwise violate any (the "Intellectual Property Rights"). The Company has entered into a confidentiality and invention assignment agreement, in the form previously provided to USOP, with each of its officers, directors, employees and consultants providing the Company, to the extent permitted by applicable law, with title and ownership to Intellectual Property Rights conceived, developed, reduced to practice by or at the direction of such person, solely or jointly, during the period of employment by the Company. Schedule 3.17 lists all of the patents, trademarks, works of authorship, registered and unregistered copyrights, registered and unregistered trademarks, trade names and service marks, and any applications therefor, which relate to or are a part of the Company's products or services (the " Company Intellectual Property Rights"), and specifies the jurisdictions in which each such issuance and registration has been filed, including the respective registration or application numbers, together with a list of all of the Company's currently marketed products and an indication as to which, if any, of such products have been registered for copyright protection with the United States Copyright Office and any foreign offices. Except as set forth on Schedule 3.17, (i) no person has any rights to use any of any third party the Company Intellectual Property Rights; and (ii) the Company has neither granted to any person, nor permitted any person to retain any rights in the Company Intellectual Property Rights. The Technology Transfer Agreement (as defined in Section 6.4) shall validly and effectively transfer all title and ownership in any Company Intellectual Property Rights currently owned by the Stockholders to the Company free and clear of any liens or encumbrances of any kind.
(b) Schedule 3.17 includes and specifically identifies all third-party patents, trademarks, works of authorship, registered and unregistered copyrights, registered and unregistered trademarks, trade names and service marks, and any applications therefor (the "Third-Party Intellectual Property Rights") which are incorporated in, are, or form a part of, any of the Company product or service. Schedule 3.17 lists (i) any requests the Company has received to make any such registration, including the identity of the requestor and the item requested to be so registered, and the jurisdiction for which such request has been made; (ii) all material licenses, sublicenses and other agreements (other than shrink wrap licenses) as to which the Company is a party and pursuant to which any person is authorized to use any of the Company Intellectual Property Rights or any trade secret that is material to the Company and (iii) all material licenses, sublicenses and other agreements (other than shrink wrap licenses) as to which the Company is a party and pursuant to which the Company is authorized to use any Third-Party Intellectual Property Rights, or trade secret of a third party in or as any product or service, and includes the identity of all parties thereto and a description and statement as to the status of the applicable royalty thereof. Schedule 3.17 includes copies of the Company's standard license agreements and lists all other agreements with respect to which the Company indemnifies third parties against intellectual property infringement. The Company is not, nor as a result of the execution and delivery of this Agreement or the performance of the Company's obligations hereunder will be, in violation of any license, sublicense or other agreement applicable to it. Except as set forth on Schedule 3.17, the Company is the sole and exclusive owner or licensee of, with all right, title and interest in and to (free and clear of any liens or encumbrances), the Intellectual Property Rights, and has sole and exclusive rights in respect thereof, and is not received contractually obligated to pay any written allegations compensation to that effectany third party. After the Closing, the Surviving Corporation will own or have the exclusive right to use, sell, license and dispose of and the exclusive right to bring actions for infringement of and otherwise exercise all the Company Intellectual Property Rights.
(c) To No claims with respect to the Company Intellectual Property Rights have been asserted, have been threatened or to the Company’s Knowledge's and the Stockholders' best knowledge, are likely to be threatened, by any person. In addition, no third party is currently misappropriatinggrounds exist for any claims, infringing or otherwise violating (i) to the effect that any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company as currently conducted or proposed to be conducted infringes on or misappropriates any patents, works of authorship, registered and the Company Subsidiaries as it is currently conducted; providedunregistered copyrights, howeverregistered and unregistered trademarks, that the foregoing representation trade name, service marks, trade secrets, tangible and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) intangible proprietary information and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets technical knowhow and any other material confidential information applications (except any patent applications) therefor in which a third party has any rights or (ii) challenging the ownership, validity or effectiveness of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has Intellectual Property Rights. No Company Intellectual Property Right is subject to any lien, encumbrance or other security interest. The Company does not know of any fact that would render the Company Intellectual Property Rights invalid. There is no material unauthorized use, infringement or misappropriation of any of the Company Intellectual Property Rights by a confidentiality obligation)present employee of the Company. To the Company’s Knowledge's or any Stockholder's best knowledge, there is no such trade secrets material unauthorized use, infringement or other misappropriation of any of the Company Intellectual Property Rights by any third party, including any former employee of the Company. There is no material confidential information has been disclosed unauthorized use, infringement or misappropriation of any of the Third-Party Intellectual Property Rights by the Company or any present employee of the Company. To the Company's and the Stockholders' best knowledge, there is no material unauthorized use, infringement or misappropriation of any of the Third-Party Intellectual Property Rights by any third party, including any former employee of the Company. No Company Subsidiaries Intellectual Property Right is subject to any Person other than pursuant to a written outstanding order, judgment, decree, stipulation or agreement restricting in any manner the licensing or exploitation thereof by the Company. The Company has not entered into any agreement to indemnify any other person against any charge of infringement relating to any Intellectual Property Right. No employee of the Company is in violation of any term of any confidentiality or invention assignment agreement, employment contract (whether written or verbal), patent disclosure and use of such trade secrets agreement or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed contract or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) agreement relating to the Company’s Knowledge, do not contain Unauthorized Code, relationship of any such employee with the Company or any other party (ivincluding prior employers) because of the nature of the business conducted or proposed to be conducted by the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Us Office Products Co)
Intellectual Property. Notwithstanding any other representation or warranty contained in this Article III, the representations and warranties contained in this Section 3.16 constitute the sole representations and warranties of Seller relating to the ownership and non-infringement of Intellectual Property.
(a) Within ten (10Section 3.16(a) Business Days following of the date of this Agreement, the Company shall provide Parent with Seller Disclosure Schedule sets forth a correct and complete list of all material unregistered Trademarks, and each item of Company Intellectual Property owned that is registered with, or subject to application for registration with, any Governmental Authority, indicating for each such item the owner, applicable registration or application number, and the applicable filing jurisdiction. The Company owns all right, title and interest, free and clear of all Liens (other than Permitted Liens), to each item of such Company Intellectual Property, and to the Seller’s Knowledge the Company Intellectual Property is valid and enforceable. None of the Company Intellectual Property, or to the Seller’s Knowledge, the Licensed Intellectual Property is subject to any Order adversely affecting the Company’s or its Subsidiaries’ use thereof or rights thereto and there is no claim pending or, to Seller’s Knowledge threatened by or against the Company or any of the Company’s Subsidiaries concerning the ownership, validity, enforceability, infringement, right to license or right to use any Company Intellectual Property or, to the Seller’s Knowledge the Licensed Intellectual Property.
(b) Section 3.16(b) of the Seller Disclosure Schedule sets forth a correct and complete list of the material Intellectual Property licensed from third parties other than “shrink-wrap,” “off-the-shelf,” or other generally commercially available non-custom software (the “Licensed Intellectual Property”). Other than limited, non-exclusive licenses to use the software and data provided on the Company’s and its Subsidiaries websites to business partners, Company brokers, investors and end users of the Company’s services granted in the Ordinary Course of Business, no item of Company Intellectual Property is licensed by Company or any Company Subsidiaries to any third party. Each agreement governing Licensed Intellectual Property is in full force and effect and is valid, binding and enforceable against the parties thereto in accordance with its terms, subject to the General Enforceability Provisions. Neither the Company nor any of its Subsidiaries, nor to the Seller’s Knowledge, any other party thereto, is in material breach or violation of, or default under, any agreement governing Licensed Intellectual Property. There are no royalties or other payments payable by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Subsidiaries for use of the Licensed Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectthereby.
(c) To the CompanySeller’s Knowledge, (i) no third party Person has infringed, or is currently misappropriatinginfringing any Company Intellectual Property, infringing or otherwise violating any Intellectual Property rights (ii) none of the Company Intellectual Property infringes or otherwise violates or conflicts with the intellectual property rights of any Company SubsidiaryPerson.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the The Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company its Subsidiaries have taken commercially reasonable measures to protect the secrecy, confidentiality and value of material Company Intellectual Property.
(e) The Company and its Subsidiaries have complied at all trade secrets times in all material respects with the privacy notice that it has supplied to borrowers in materials and any other material confidential information on active and borrower-facing websites owned or operated by or on behalf of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of its Subsidiaries as required by its privacy notice and applicable Law governing their use of nonpublic personal information collected thereon. Consummation of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed transactions contemplated by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of Transaction Agreements will not violate such trade secrets or any other material confidential information by such Personprivacy notice.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (ai) Within ten (10) Business Days following the date of this AgreementThe Company has not interfered with, the Company shall provide Parent with a correct and complete list of all Intellectual Property owned by the Company infringed upon, misappropriated, or violated any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights Proprietary Rights of any third party party, in any material respect, and the Company has not ever received any written allegations to that effect.
(c) To the Company’s Knowledgecharge, no third party is currently misappropriatingcomplaint, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(d) Except as has not hadclaim, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to usedemand, or otherwise possess valid rights to usenotice alleging any such interference, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation (including any claim that the Company must license or refrain from using any Proprietary Rights of any Intellectual Property rights (which third party). To the knowledge of any Seller, no third party has interfered with, infringed upon, misappropriated, or violated any Proprietary Rights of the Company in any material respect. No claim by any third party contesting the validity, enforceability, use or ownership of any of the Company Proprietary Rights is addressed in Section 4.21(b) pending or, to the knowledge of any Seller is threatened, and Section 4.21(c))to the knowledge of any Seller, there are no grounds for the same.
(eii) To Section 3.2(m)(ii) of the Company’s Knowledge, Disclosure Schedule identifies each patent or registration which has been issued to the Company and with respect to any of the Company Subsidiaries Proprietary Rights, identifies each pending patent application or application for registration which the Company has made with respect to any of the Company Proprietary Rights, and identifies each material license, agreement, or other permission which the Company has granted to any third party with respect to any of the Company Proprietary Rights (together with any exceptions). The Sellers have taken commercially reasonable measures delivered to protect the confidentiality Buyer correct and complete copies of all such patents, registrations, applications, licenses, agreements, and permissions (as amended to date). Section 3.2(m)(ii) of the Disclosure Schedule also identifies each material trade secrets and name or material unregistered trademark used by any other material confidential information of the Company and its Subsidiaries.
(iii) Section 3.2(m)(iii) of the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any Disclosure Schedule identifies each material item of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by Proprietary Rights that any third party owns and that the Company or any Company Subsidiaries to any Person other than uses pursuant to a written agreement restricting license, sublicense, agreement, or permission. The Sellers have delivered to the disclosure Buyer correct and use complete copies of all such licenses, sublicenses, agreements, and permissions, including, licenses of software (as amended to date), except to the extent the same are contained in the body of such trade secrets or any other material confidential information by such Person.software and not otherwise reduced to writing. With respect to each item of the Company Proprietary Rights identified in Section 3.2(m)(iii) of the Disclosure Schedule and exceptions noted above:
(fA) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquiredlicense, licensed sublicense, agreement, or established in an efficient manner without material downtime or errorspermission covering the item is legal, (ii) have notvalid, in the past three (3) yearsbinding, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breachesenforceable, and (v) are considered by the Company to effectively perform, in full force and effect in all material respects; EXECUTION COPY
(B) no party to the license, sublicense, agreement, or permission is in material breach or default, and no event has occurred which with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration thereunder;
(C) no party to the license, sublicense, agreement, or permission has repudiated any material provision thereof; and
(D) the Company has not granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission.
(iv) the Company owns or has a license to use all information technology operations Proprietary Rights necessary to conduct for the operation of their businesses as conducted as of the Company Most Recent Fiscal Year End and the Company Subsidiaries as they are currently conducted.
(v) All Proprietary Rights owned or used by the Company immediately prior to Closing will be owned or available for use by the Company on identical terms and conditions immediately subsequent to Closing.
Appears in 1 contract
Intellectual Property. (a) Within ten (10Section 4.16(a) Business Days following of the Company Disclosure Letter sets forth, as of the date of this Agreement, the Company shall provide Parent with a true, correct and complete list of all of the following Intellectual Property owned by the Company or any Company Subsidiary that is the subject of an application, certificate, filing, registration or other document issued owned by, filed with or recorded by any Governmental Authority or and material to, the Group Companies: (i) issued Patents and pending applications for Patents; (ii) registered Trademarks and pending applications for registration of Trademarks; (iii) registered Copyrights and pending applications for registration of Copyrights; (iv) Internet domain name registrar names (the Intellectual Property referred to in clauses (i) through (iv), without any limitations as to materiality, collectively, the “Company Registered Intellectual Property”); and (v) material unregistered Trademarks. All of the Owned Intellectual Property is valid and subsisting and, together with to the Knowledge of the Company, enforceable in all material unregistered trademarksrespects. To All necessary registration, maintenance, renewal, and other relevant filing fees due through the Company’s Knowledgedate of this Agreement have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, all Trademark, Copyright, domain name registrar, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purpose of maintaining each material item of the Company Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite feesProperty.
(b) To The Company or one of its Subsidiaries is the sole and exclusive owner of all right, title and interest in and to all Owned Intellectual Property and has, to the Knowledge of the Company’s Knowledge, a license, sublicense or otherwise possesses legally enforceable rights to use all other material Intellectual Property used in the conduct of the business businesses of the Company Group Companies as presently conducted, free and clear of all Liens (other than Permitted Liens). The Owned Intellectual Property and the Company Subsidiaries Licensed Intellectual Property when used within the scope of the applicable Inbound Licenses include all of the Intellectual Property necessary for each of the Group Companies to conduct its business as it is currently conducted and planned in all material respects (it being understood that this Section 4.16(b) is not a representation or warranty with respect to be conducted does not infringe, misappropriate or otherwise violate any non-infringement of third-party Intellectual Property rights of any third party and the Company has not received any written allegations to that effectProperty).
(c) To the Knowledge of the Company’s Knowledge, since the Reference Date, the Owned Intellectual Property and the conduct of the businesses of the Group Companies has not infringed, misappropriated or otherwise violated, and is not infringing, misappropriating or otherwise violating, any Intellectual Property rights of any Person. To the Knowledge of the Company, no Person has infringed, misappropriated or otherwise violated, or is infringing, misappropriating or otherwise violating, any of the Owned Intellectual Property, and no such claims have been made in writing against any third party by any of the Group Companies since the Reference Date.
(d) From January 1, 2018 through the date of this Agreement, except as set forth in Section 4.16(d) of the Company Disclosure Letter, there has been no action pending against any of the Group Companies and the Company has not received since the Reference Date through the date of this Agreement any written notice from any Person pursuant to which any Person is: (i) alleging that the conduct of the business of any of the Group Companies is currently misappropriatinginfringing, infringing misappropriating or otherwise violating any Intellectual Property rights of any third party; or (ii) contesting the Company or any Company Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, ownership, validity or otherwise possess valid rights enforceability of any of the Owned Intellectual Property. None of the Owned Intellectual Property is subject to any pending or outstanding injunction, order, judgment, settlement, consent order, ruling or other disposition of dispute that adversely restricts the use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute transfer or be deemed or construed as any representation or warranty with respect to infringement, misappropriationregistration of, or violation of adversely affects the validity or enforceability of, any such Owned Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))Property.
(e) No past or present director, officer, employee, consultant or independent contractor of any of the Group Companies owns (or has any claim or any right (whether or not currently exercisable) to any ownership interest in or to other rights in any Owned Intellectual Property (other than the right to use such material Owned Intellectual Property in the performance of their activities for the Group Companies). Each of the past and present directors, officers, employees, consultants and independent contractors of any of the Group Companies who are or were engaged in creating or developing any Owned Intellectual Property for the Group Companies has executed and delivered a written agreement, pursuant to which such Person has: (i) agreed to hold all Trade Secrets of such Group Company (or of another Person and held by such Group Company) in confidence both during and for certain periods after such Person’s employment or retention, as applicable; (ii) presently assigned to such Group Company all of such Person’s rights, title and interest in and to all such Owned Intellectual Property created or developed for such Group Company in the course of such Person’s employment or retention thereby; and (iii) agreed to waive all moral rights such Person may have in any such work which such Person created or authored for such Group Company in the course of such Person’s employment or retention thereby. To the Knowledge of the Company, no such Person is in violation of any such agreement. As of the date of this Agreement, there are no pending or, to the Company’s Knowledge, threatened, claims from current or former directors, employees or contractors of a Group Company in any jurisdiction for compensation or remuneration for inventions invented, copyright works created or any similar claim, including under Israeli Patents Law, 5727-1967.
(f) Each of the Company and the Company Subsidiaries have Group Companies, as applicable, has taken commercially reasonable measures steps to protect maintain the secrecy, confidentiality and value of all trade secrets and any other material confidential information of Trade Secrets included in the Company and the Company Subsidiaries Owned Intellectual Property (and any confidential information or owned by any another Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligationand held by such Group Company). To the Knowledge of the Company’s Knowledge, no such trade secrets or other Trade Secret that is material confidential information to the business of the Group Companies has been disclosed by to any of the Company Group Companies’ past or present employees or any Company Subsidiaries to any Person other Person, other than pursuant as subject to a written an agreement restricting the disclosure and use of such trade secrets Trade Secret, and to the Knowledge of the Company, there is no uncured breach by any employee or Person under any other material confidential information by such Personagreement.
(fg) The IT Assets No funding, facilities or personnel of any Governmental Entity or any university, college, research institute or other educational institution has been or is being used in any material respect to create, in whole or in part, any Owned Intellectual Property. To the Knowledge of the Company, no current or former employee, consultant or independent contractor of any of the Group Companies who contributed to the creation or development of any material Owned Intellectual Property was performing services for a Governmental Entity or any university, college, research institute or other educational institution related to the Group Companies’ businesses during a period of time during which such employee, consultant or independent contractor was also performing services for any of the Group Companies.
(h) Each of the Group Companies, as applicable, has taken commercially reasonable steps to maintain the secrecy, confidentiality and value of the source code included in the Group Company Software. No source code for any Group Company Software has been delivered, licensed or made available, and no Group Company has any duty or obligation to deliver, license or make available any such source code, to any escrow agent or other Person who is not, as of the date of this Agreement, an employee or contractor of a Group Company subject to confidentiality obligations to the Group Company with respect to such source code.
(i) are in operating order in all material respects and are fulfilling To the purposes for which they were acquiredKnowledge of the Company, licensed the Group Company Software does not contain any viruses, worms, Trojan horses, bugs, faults or established in an efficient manner without material downtime or other devices, errors, contaminants or code that could (i) materially disrupt or materially and adversely affect the functionality of the Group Company Software, or (ii) have notenable or assist any Person to access without authorization, any Group Company Software, except for access disclosed in the past three documentation of such Group Company Software.
(3j) yearsThe Company or one of its Subsidiaries owns, experienced or has a valid right to access and use pursuant to a written agreement (which, for the avoidance of doubt, shall include standard click-through agreements), all computer systems, including the Software, hardware, networks, interfaces, platforms and related systems, databases, websites and equipment, used by any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Group Company to effectively performprocess, store, maintain and operate data, information and functions that are material to and used in all material respects, all information technology operations necessary to conduct connection with the businesses of the Group Companies (collectively, the “Company IT Systems”). The Company IT Systems are sufficient for the operation of the businesses of the Group Companies as currently conducted. Since the Reference Date, there have been no failures, breakdowns, continued substandard performance or other adverse events affecting any such Company IT Systems that have caused or, to the Knowledge of the Company, could reasonably be expected to result in the substantial disruption or interruption in or to the use of such Company IT Systems or the conduct of the business of the Group Companies. To the Knowledge of the Company, the Company IT Systems do not contain any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants or code that could (i) materially disrupt or materially and adversely affect the functionality of the Company IT Systems, or (ii) enable or assist any Person to access without authorization, any Company IT Systems, except for access disclosed in the documentation of such Company IT Systems.
(k) None of the Group Companies have incorporated any Open Source Software in, or used any Open Source Software in connection with, any Group Company Software developed, licensed, distributed, used or otherwise exploited by any of the Group Companies in a manner that requires the contribution, licensing or disclosure to any third party of any material portion of any proprietary Group Company source code or that would otherwise transfer the rights of ownership in any Owned Intellectual Property of any of the Group Companies to any Person. The Group Companies are in material compliance with the terms and conditions of all relevant licenses for Open Source Software used in the businesses of the Group Companies, including notice obligations.
(l) The execution and delivery of this Agreement by the Group Companies and the Company Subsidiaries as they are currently conductedconsummation of the Transactions will not: (i) result in the breach of, or create on behalf of any third party the right to terminate or modify, any agreement relating to any Owned Intellectual Property or Licensed Intellectual Property; (ii) result in or require the grant, assignment or transfer to any other Person (other than SPAC or any of their respective Affiliates) of any license or other right or interest under, to or in any Owned Intellectual Property; or (iii) cause a loss or impairment of any Owned Intellectual Property or Licensed Intellectual Property.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fintech Acquisition Corp V)
Intellectual Property. (ai) Within ten The Company has ownership or license or legal right to use all patent, copyright, trade secret, know-how trademark, trade name customer lists, designs, manufacturing or other processes, computer software, systems, data compilation, research results or other proprietary rights used in the business of the Company (10) Business Days following collectively “Intellectual Property”). All of such patents, registered trademarks and registered copyrights have been duly registered in, filed in or issued by the date of this AgreementUnited States Patent and Trademark Office, the United States Register of Copyrights or the corresponding offices of other jurisdictions and have been maintained and renewed in accordance with all applicable provisions of law and administrative regulations in the United States and all such jurisdictions.
(ii) The Company shall provide Parent believes it has taken all reasonable steps required in accordance with a correct sound business practice and complete list business judgment to establish and preserve its and its subsidiaries ownership of all material Intellectual Property with respect to their products and technology.
(iii) To the knowledge of the Company, the present business, activities and products of the Company and its subsidiaries do not infringe any intellectual property of any other person, except where such infringement would not have a Material Adverse Effect. No proceeding charging the Company with infringement of any adversely held Intellectual Property has been filed.
(iv) No proceedings have been instituted or pending or, to the knowledge of the Company, threatened, which challenge the rights of the Company to the use of the Intellectual Property. The Company has the right to use, free and clear of material claims or rights of other persons, all of its customer lists, designs, computer software, systems, data compilations, and other information that are required for its products or its business as presently conducted. Neither the Company nor any subsidiary is making unauthorized use of any confidential information or trade secrets of any person. The activities of any of the employees on behalf of the Company or of any subsidiary do not violate any agreements or arrangements between such employees and third parties are related to confidential information or trade secrets of third parties or that restrict any such employee’s engagement in business activity of any nature.
(v) All licenses or other agreements under which (i) the Company or any subsidiary employs rights in Intellectual Property, or (ii) the Company or any subsidiary has granted rights to others in Intellectual Property owned or licensed by the Company or any Company Subsidiary that subsidiary are in full force and effect, and there is no default (and there exists no condition which, with the subject passage of an applicationtime or otherwise, certificate, filing, registration or other document issued by, filed with or recorded would constitute a default by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To the Company’s Knowledge, the conduct of the business of the Company and the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effect.
(c) To the Company’s Knowledge, no third party is currently misappropriating, infringing or otherwise violating any Intellectual Property rights of the Company or any Company Subsidiary.
(dsuch subsidiary) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Personsubsidiary with respect thereto.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Pw Eagle Inc)
Intellectual Property. (a) Within ten (10Section 3.18(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct complete and complete accurate list of all Company Intellectual Property owned by (other than computer software that is generally available to consumers at retail and licensed pursuant to “shrink-wrap,” “click-through” or other similar standard license agreements), including the owner, owner of record if registered or registration has been applied for, registration or application date, registration or application number, and other information sufficient to identify and distinguish such Company Intellectual Property.
(b) Section 3.18(b) of the Company Disclosure Schedule sets forth all material Contracts pursuant to which the Company or any Company Subsidiary that is the subject of an applicationgrants or receives rights to Intellectual Property (collectively, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (the “Registered Intellectual PropertyLicense Agreements”). Subject to the Bankruptcy Exceptions, together each License Agreement is a valid and binding obligation of the Company or a Company Subsidiary, enforceable in accordance with all material unregistered trademarks. To its terms, and neither the Company nor such Company Subsidiary, as applicable, and to the Company’s KnowledgeKnowledge no other party, all is in material Registered Intellectual Property has been maintained effective by the filing of all necessary filingsbreach or default under any License Agreement, maintenance and renewals and timely payment of requisite feesexcept as would not have a Company Material Adverse Effect.
(bc) To Except as set forth in Section 3.18(c) of the Company Disclosure Schedule:
(i) the Company or a Company Subsidiary (A) is the sole and exclusive owner of the Company Intellectual Property, free and clear of all Liens other than Permitted Liens, and (B) has a valid and, to the Company’s KnowledgeKnowledge and subject to the Bankruptcy Exceptions, enforceable license to use all Intellectual Property owned by a third party that is used in connection with the conduct of the business of the Company and the Company Subsidiaries as it currently conducted;
(ii) to the Company’s Knowledge, neither the Company Intellectual Property, the Company, any Company Subsidiary, the conduct of the business of the Company, nor the conduct of the business of any Company Subsidiary has in the past or is currently conducted and planned to be conducted does not infringepresently infringing, misappropriate diluting, misappropriating or otherwise violate any violating the Intellectual Property rights of any third party and party;
(iii) no Claim is pending, or to the Company’s Knowledge, is presently threatened against the Company or any Company Subsidiary that any of the Company Intellectual Property, the Company, any Company Subsidiary, the conduct of the Company’s business or the conduct of any Company Subsidiary’s business has not received in the past or is presently infringing, diluting, misappropriating or otherwise violating the Intellectual Property rights of any written allegations to that effect.third party; and
(civ) To to the Company’s Knowledge, no third party is currently misappropriatinginfringing, infringing diluting, misappropriating or otherwise violating in any Intellectual Property material respects any rights of the Company or Company Subsidiary, as applicable, in any Company SubsidiaryIntellectual Property.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of the Company and the Company Subsidiaries as they are currently conducted.
Appears in 1 contract
Intellectual Property. (a) Within ten (10Section 3.13(a) Business Days following the date of this Agreement, the Company shall provide Parent with Disclosure Schedule sets forth a correct true and complete list of all Intellectual Property owned by (i) patents and patent applications, (ii) registrations and applications for registration of trademarks and service marks, (iii) registrations and applications for registration of copyrights, (iv) domain name registrations, (v) invention or technology disclosures (other than those subject to issued patents or pending patent applications) and (vi) Software that the Company or any Company a Subsidiary that is licenses to third parties in the subject operation of an applicationtheir business, certificatein each case, filing, registration or other document issued by, filed with or recorded by any Governmental Authority or domain name registrar (included in the “Registered Owned Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(b) To Except as set forth in Section 3.13(b)(i) of the Company Disclosure Schedule, the Company or a Subsidiary is the exclusive owner of the entire and unencumbered right, title and interest in and to the Owned Intellectual Property, and the Company or a Subsidiary has a valid right to use the Licensed Intellectual Property in the ordinary course of their business as presently conducted or as contemplated to be conducted. Except as set forth in Section 3.13(b)(ii) of the Company Disclosure Schedule, the Owned Intellectual Property and, to knowledge of the Company’s Knowledge, the Licensed Intellectual Property, are subsisting, valid and enforceable, and have not been adjudged invalid or unenforceable in whole or in part.
(c) The conduct of the business of by the Company and the Company Subsidiaries of their business as it is currently conducted and planned or as contemplated to be conducted does conducted, and the use of the Owned Intellectual Property and Licensed Intellectual Property in connection therewith, do not conflict with, infringe, misappropriate or otherwise violate any the Intellectual Property or other proprietary rights of any third party and party. Except as disclosed in Section 3.13(c) of the Company has not received any written allegations to that effect.
(c) To the Company’s KnowledgeDisclosure Schedule, no third party is currently misappropriating, infringing Actions have been asserted or otherwise violating any Intellectual Property rights of are pending or threatened against the Company or any Subsidiary (i) based upon or challenging or seeking to deny or restrict the use by the Company Subsidiaryor any Subsidiary of any of the Owned Intellectual Property or Licensed Intellectual Property, (ii) alleging that any services provided by, processes used by, or products manufactured or sold by the Company or any Subsidiary infringe, misappropriate or otherwise violate the Intellectual Property right or other proprietary right of any third party, or (iii) alleging that the Licensed Intellectual Property is being licensed or sublicensed in conflict with the terms of any license or other agreement. Except as disclosed in Section 3.13(c) of the Company Disclosure Schedule, no Owned Intellectual Property or Licensed Intellectual Property is subject to any outstanding decree, order, injunction, judgment or ruling restricting the use of such Intellectual Property or that would impair the validity or enforceability of such Intellectual Property. Except as disclosed in Section 3.13(c) of the Company Disclosure Schedule and to the knowledge of the Company, no person is engaging in any activity that infringes the Owned Intellectual Property or Licensed Intellectual Property.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company The Owned Intellectual Property and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Licensed Intellectual Property necessary constitutes all of the Intellectual Property used or held for use or intended to be used in conduct the business of the Company and the Company Subsidiaries as it is currently presently conducted or contemplated to be conducted; provided, however, and there are no other items of Intellectual Property that are material to the foregoing representation conduct of the Company and warranty the Subsidiaries as presently conducted or contemplated to be conducted. The consummation of the transactions contemplated by this Agreement will not result in this Section 4.21(d) shall not constitute the termination or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation impairment of any of the Owned Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c))or the Licensed Intellectual Property or require the payment of additional royalties or fees to third parties.
(e) To the Company’s Knowledge, the The Company and the Company Subsidiaries have taken commercially reasonable measures steps in accordance with normal industry practice to protect maintain the confidentiality of all the trade secrets and any other material confidential information of the Company and the Company Subsidiaries (and any confidential information owned by any Person Intellectual Property used or held for use or intended to whom the Company or any of the Company Subsidiaries has a confidentiality obligation). To the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed be used by the Company or any Company Subsidiaries to any Person other than pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such PersonSubsidiaries.
(f) The IT Assets (i) are consummation of the transactions contemplated in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed this Agreement will not materially impair or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered by the Company to effectively perform, in all material respects, all information technology operations necessary to conduct the businesses of interrupt the Company and the Subsidiaries' access and use of, or its right to access and use, the Company Subsidiaries as they are currently conductedIT Systems. The Company has taken all reasonable steps in accordance with normal industry practice to secure the Company IT Systems from unauthorized access or use thereof by any person, and to provide for the continued, uninterrupted and error-free operation of the Company IT Systems, including employing security, maintenance, disaster recovery, redundancy, backup, archiving and virus or malicious device scanning/protection measures.
Appears in 1 contract
Intellectual Property. (a) Within ten The Company and/or the Subsidiary own, or are licensed or otherwise possess legally enforceable rights to use all patents, trademarks, trade names, service marks, copyrights and any applications therefor, technology, know-how, computer software programs or applications, and tangible or intangible proprietary information or material that are used in the business of the Company and/or the Subsidiary as currently conducted, except as would not reasonably be expected to have a Material Adverse Effect.
(10b) Business Days following The Company and/or the Subsidiary are not in material violation of any material licenses, sublicenses and other agreements as to which the Company and/or the Subsidiary are a party and pursuant to which the Company and/or the Subsidiary are authorized to use any third-party patents, trademarks, service marks and copyrights ("Third-Party Intellectual Property Rights"). Except as disclosed in the Company Reports or in the Company Disclosure Statement, as of the date of this AgreementAgreement no claims with respect to the patents, the Company shall provide Parent with a correct registered and complete list of all Intellectual Property unregistered trademarks and service marks, registered copyrights, trade names and any applications therefor owned by the Company or the Subsidiary (the "Company Intellectual Property Rights"), any Company Subsidiary that is trade secret material to the subject of an applicationCompany, certificate, filing, registration any software code or other document issued byintellectual property used by the Company, filed with or recorded Third-Party Intellectual Property Rights to the extent arising out of any use, reproduction or distribution of such Third-Party Intellectual Property Rights by or through the Company or the Subsidiary, are currently pending (or, to the knowledge of the Company, are overtly threatened by any Governmental Authority or domain name registrar (the “Registered Intellectual Property”), together with all material unregistered trademarks. To the Company’s Knowledge, all material Registered Intellectual Property has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees.
(bPerson) To the Company’s Knowledge, the conduct of the business of against the Company and and/or the Company Subsidiaries as it is currently conducted and planned to be conducted does not infringe, misappropriate or otherwise violate any Intellectual Property rights of any third party and the Company has not received any written allegations to that effectSubsidiary.
(c) To the Company’s Knowledge's knowledge, all patents, registered trademarks, service marks and copyrights held by the Company or the Subsidiary are valid and subsisting. Except as disclosed in the Company Reports or in the Company Disclosure Statement, to the Company's knowledge, there is no third party is currently misappropriatingmaterial unauthorized use, infringing infringement or otherwise violating misappropriation of any Company Intellectual Property rights Rights by any third party, including any employee or former employee of the Company or any Company and/or Subsidiary.
(d) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business Each current employee of the Company or its Subsidiary, and the Company Subsidiaries as it is currently conducted; provided, however, that the foregoing representation and warranty in this Section 4.21(d) shall not constitute or be deemed or construed as any representation or warranty with respect to infringement, misappropriation, or violation of any Intellectual Property rights (which is addressed in Section 4.21(b) and Section 4.21(c)).
(e) To the Company’s Knowledge, the Company and the Company Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information each former employee of the Company and the Company Subsidiaries (and any confidential information owned by any Person to whom or its Subsidiary whose employment relationship with the Company or its Subsidiary was terminated on or after January 1, 2000, who is or was involved in, or who has contributed to, or who has knowledge of, the creation or development of any of material Company Intellectual Property Rights has executed and delivered to the Company Subsidiaries has a confidentiality obligation). To or, as applicable, the Company’s Knowledge, no such trade secrets or other material confidential information has been disclosed by the Company or any Company Subsidiaries to any Person other than pursuant to a written Subsidiary an agreement restricting the disclosure and use of such trade secrets or any other material confidential information by such Person.
(f) The IT Assets (i) are in operating order in all material respects and are fulfilling the purposes for which they were acquired, licensed or established in an efficient manner without material downtime or errors, (ii) have not, in the past three (3) years, experienced any material errors and/or breakdowns, (iii) that is substantially identical to the Company’s Knowledge, do not contain Unauthorized Code, (iv) to the Company’s Knowledge, have not experienced any material security breaches, and (v) are considered form of Confidentiality Agreement previously delivered by the Company to effectively perform, Parent. Each Confidentiality Agreement that is in all material respects, all information technology operations necessary to conduct force shall remain in full force and effect following the businesses completion of the Company Merger in accordance with its terms and shall be enforceable in full by the Surviving Corporation. Neither the Company Subsidiaries nor its Subsidiary has granted any current or former employee, officer, director, stockholder, consultant or independent contractor any right or interest in or with respect to any Company Intellectual Property Rights. To the best of the Company's knowledge, no current or former employee, officer, director, stockholder, consultant or independent contractor has breached in any material respect the terms of any confidentiality, noncompetition, or proprietary rights agreement, between such current or former employee, officer, director, stockholder, consultant or independent contractor and any other Person. Each non-competition agreement filed as they are currently conductedan exhibit to the Company Reports is in full force and effect and shall remain in full force and effect following the completion of the Merger in accordance with its terms and shall be enforceable in full by the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Ecometry Corp)
