IP Rights. (a) Each Acquired Entity owns, or has valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), and immediately following the consummation of the transactions contemplated hereby, will own or have valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), all IP Rights used or held for use in, or necessary for, the conduct of its businesses in the manner in which they are currently being conducted. (b) Section 2.8(b) of the Seller Disclosure Schedule lists all of (i) issued patents and patent applications (published or unpublished), (ii) trademark registrations and applications and material unregistered trademarks, (iii) domain names, (iv) copyright registrations and applications and (v) material software, in each case which is owned or purported to be owned by an Acquired Entity in any jurisdiction in the world. Except as disclosed in Section 2.8(b) of the Seller Disclosure Schedule, an Acquired Entity is the sole and exclusive beneficial and, for applications and registrations (including patents), record owner of all of the IP Rights listed in Section 2.8(b) of the Seller Disclosure Schedule and, to the Seller Parties’ Knowledge, all such IP Rights are valid, enforceable and subsisting. (c) The Acquired Entities are not subject to any Orders or settlement agreements that limit the Acquired Entities’ ownership of any material IP Rights. (d) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, there is no, and since January 1, 2016 there has not been any, Claim pending (or, to the Seller Parties’ Knowledge, threatened) (i) alleging or asserting that any Acquired Entity is or was infringing any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the right to use, any IP Rights owned by any Acquired Entity or (ii) by any Acquired Entity against any other Person that is or was based on any Claim that another Person is infringing any IP Rights owned by such Acquired Entity. Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (1) since January 1, 2016, the conduct of the businesses of each Acquired Entity has not infringed, misappropriated or otherwise violated any IP Rights owned by any other Person and (2) to the Seller Parties’ Knowledge, no Person is infringing, misappropriating or otherwise violating any IP Rights owned, used or held for use by any Acquired Entity in the conduct of their businesses. (e) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect: (i) each Acquired Entity has taken reasonable steps to protect the confidentiality of its Trade Secrets; (ii) except as described in Section 2.8(e)(ii) of the Seller Disclosure Schedule, to the Seller Parties’ Knowledge, there has not been any disclosure of or access to any material Trade Secret of any of the Acquired Entities (including any such information of any other Person disclosed in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in and to such information; (iii) since January 1, 2016, each Acquired Entity has complied with all applicable Laws, as well as its own rules, policies and procedures, relating to privacy, data protection, and the collection, retention, protection and use of Personal Information collected, used, or held for use by any Acquired Entity; (iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or Personal Information or data rights by such Acquired Entity; (v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that is collected by such Acquired Entity against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and (vi) each Acquired Entity also takes commercially reasonable measures to protect the confidentiality, integrity and availability of all such Personal Information in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information and the unauthorized use or disclosure of such Personal Information. (f) Except as described in Section 2.8(f) of the Seller Disclosure Schedule or as otherwise would not (and would not reasonably be expected to) result in, individually or in the aggregate, a Material Adverse Effect, since January 1, 2016, (i) there have been no security breaches in any Acquired Entity’s information technology systems or, to the Seller Parties’ Knowledge, the information technology systems of third Persons to the extent used by or on behalf of any Acquired Entity, and (ii) there have been no disruptions in any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans and systems that reasonably address its assessment of risk.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Performance Food Group Co)
IP Rights. (a) Each Acquired Entity owns, or has valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), and immediately following the consummation of the transactions contemplated hereby, will own or have valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), all IP Rights used or held for use in, or necessary for, the conduct of its businesses in the manner in which they are currently being conducted.
(b) Section 2.8(b3.7(a) of the Seller Disclosure Schedule lists sets forth a true and complete list as of the date hereof of all of (i) issued patents and patent applications (published or unpublished), (ii) trademark registrations and applications and material unregistered trademarksapplications, (iii) domain names, and (iv) copyright registrations and applications and (v) material softwareapplications, in each case which is case, that are, or will be after giving effect to the Reorganization, owned or purported to be owned by an Acquired Entity Company in any jurisdiction in the world. Except as disclosed in Section 2.8(b) of An Acquired Company is, or will be after giving effect to the Seller Disclosure ScheduleReorganization, an Acquired Entity is the sole and exclusive beneficial and, for applications and registrations (including patents)to the extent applicable, record owner of all of the Owned IP Rights listed in set forth on or required to be set forth on Section 2.8(b3.7(a) or Section 3.7(e)(i) of the Seller Disclosure Schedule (for clarity, excluding (i) any Software that is owned, as between an Acquired Company and a third party, exclusively by a third party and incorporated or embedded in any such Company Software, (ii) PlantPredict and (iii) PlantDesign, which are not Owned IP Rights), free and clear of all Liens (other than Permitted Liens) and, as of the date hereof, all Owned IP Rights set forth on or required to be set forth on Section 3.7(a) of the Seller Disclosure Schedule are in effect and subsisting, and to Seller’s Knowledge, valid in each case, except as would not be material to the Seller Parties’ KnowledgeFS Development Platform and the Acquired Companies, all such IP Rights are valid, enforceable and subsistingtaken as a whole.
(c) The Acquired Entities are not subject to any Orders or settlement agreements that limit the Acquired Entities’ ownership of any material IP Rights.
(db) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, there is no, and since January 1, 2016 there has not been any, Claim pending (or, material to the Seller Parties’ KnowledgeFS Development Platform and the Acquired Companies, threatened) taken as a whole, (i) alleging neither the conduct of the business of the Acquired Companies as currently conducted nor the conduct of the FS Development Platform as currently conducted infringes, misappropriates or asserting that any Acquired Entity is otherwise violates, and has not in the last three (3) years infringed, misappropriated or was infringing otherwise violated, any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the right to use, any IP Rights owned by any Acquired Entity or Person; (ii) by any Acquired Entity against any other Person that is or was based on any Claim that another Person is infringing any IP Rights owned by such Acquired Entity. Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (1) since January 1, 2016, the conduct of the businesses of each Acquired Entity has not infringed, misappropriated or otherwise violated any IP Rights owned by any other Person and (2) to the Seller Parties’ Seller’s Knowledge, no Person is infringing, misappropriating or otherwise violating violating, or in the last three (3) years has infringed, misappropriated or otherwise violated, any Owned IP Rights; (iii) there is no Claim initiated by any other Person pending or, to Seller’s Knowledge, threatened in writing concerning the foregoing matters (including any invitation to license or demand to refrain from using any IP Rights ownedof any Person); and (iv) no Owned IP Rights are subject to any outstanding challenge with any Governmental Authority or any outstanding written challenge from any other Person regarding the validity or enforceability thereof, or any Order restricting the use thereof, or that will restrict the use thereof after giving effect to the Reorganization, by the Acquired Companies, or restricting the licensing thereof, or that will restrict the licensing thereof after giving effect to the Reorganization, by the Acquired Companies to any Person.
(c) Seller and its Affiliates have taken reasonable measures to protect and maintain the confidentiality of all trade secrets and confidential information used or held for use in, and material to, the FS Development Platform, including any such personally identifiable information and the source code for all Company Software. To Seller’s Knowledge, no trade secret or confidential information included in the Owned IP Rights has been disclosed to or accessed by any third party, except pursuant to written and valid non-disclosure obligations (or other valid non-disclosure obligations or fiduciary duties of attorneys, accountants, or other advisors) that, to Seller’s Knowledge, have not been breached, in each case, except as would not be material to the FS Development Platform and the Acquired Entity Companies, taken as a whole.
(d) Each Person who has participated in the conduct conception, creation, or development of their businessesany IP Rights on behalf of Seller or its Affiliates with respect to any Owned IP Rights or IP Rights owned or purported to be owned by Seller or its Affiliates, in each case, which are material to the FS Development Platform has executed a valid and enforceable written agreement transferring (or has otherwise transferred, by operation of law or otherwise) the entire right, title and interest of such Person therein to Seller or the applicable Affiliate. To Seller’s Knowledge, no such Person is in material breach under any such agreement.
(e) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect:
(i) each Acquired Entity has taken reasonable steps to protect the confidentiality of its Trade Secrets;
(ii) except as described in Section 2.8(e)(ii) of the Seller Disclosure Schedule, to the Seller Parties’ Knowledge, there has not been any disclosure of or access to any material Trade Secret of any of the Acquired Entities (including any such information of any other Person disclosed in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in and to such information;
(iii) since January 1, 2016, each Acquired Entity has complied with all applicable Laws, as well as its own rules, policies and procedures, relating to privacy, data protection, and the collection, retention, protection and use of Personal Information collected, used, or held for use by any Acquired Entity;
(iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or Personal Information or data rights by such Acquired Entity;
(v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that is collected by such Acquired Entity against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and
(vi) each Acquired Entity also takes commercially reasonable measures to protect the confidentiality, integrity and availability of all such Personal Information in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information and the unauthorized use or disclosure of such Personal Information.
(f) Except as described in Section 2.8(f3.7(e) of the Seller Disclosure Schedule sets forth, as of the date hereof, a true and complete list of (i) Company Software material to the FS Development Platform and (ii) material Software that is owned by any third party and is incorporated or embedded in such Company Software (excluding PlantPredict). Seller and its Affiliates have in their possession all source code and documentation related to the Company Software owned or purported to be owned by Seller or its Affiliates that is material to the FS Development Platform to enable a Software developer of reasonable skill and experience (together with the services, knowledge-transfer and assistance to be provided by Seller and its Affiliates pursuant to the Transition Services Agreement or otherwise prior to or on Closing) to modify, debug, enhance, compile and support such Company Software as reasonably required for the FS Development Platform as currently conducted. None of the Company Software (excluding PlantPredict) that is material to the FS Development Platform is subject to any condition or other requirement that such Company Software be licensed pursuant to an Open Source Software license or that the source code for any such Company Software be delivered, disclosed, licensed or otherwise made available to any other Person. No escrow agents or other Persons other than the Acquired Companies possess any current or contingent rights of any kind to receive or obtain a license to any source code included in the Company Software (excluding PlantPredict).
(f) Seller and its Affiliates have taken the reasonable security, disaster recovery and backup measures necessary to protect the security and integrity of the Company IT Assets and the sensitive data stored or contained therein or transmitted thereby, except as would not be material to the FS Development Platform and the Acquired Companies, taken as a whole. The Owned Company IT Assets are, to Seller’s Knowledge, free from material bugs, viruses, malicious code or similar contaminants. The PlantDesign Software is, to Seller’s Knowledge, free from material viruses, malicious code or similar contaminants. In the past three (and would 3) years, there has not reasonably be expected tobeen a material disruption to the operations of the FS Development Platform due to the inadequacy of, or unsatisfactory operation or performance of, the Company IT Assets, other than any such inadequacy or unsatisfactory operation or performance that has been resolved in all material respects. In the past three (3) result in, individually or in the aggregate, a Material Adverse Effect, since January 1, 2016years, (i) there the Company IT Assets have been no not suffered a material malfunction or failure that has caused a material disruption to the operations of the FS Development Platform, or (ii) to Seller’s Knowledge, suffered a security breaches breach or other unauthorized access that is (or that otherwise exposed any unresolved security vulnerability that would reasonably be expected to be) material to the FS Development Platform.
(g) Except as would not be material to the FS Development Platform and the Acquired Companies, taken as a whole, Seller and its Affiliates have, with respect to the FS Development Platform, maintained and complied with its internal and external privacy and data security policies and with all applicable Laws related to privacy and data security.
(h) No university, military, educational institution, research center, Governmental Authority or other similar organization (each, an “R&D Sponsor”) has funded or sponsored research and development (whether directly or through performance of such research and development by a student or employee of any R&D Sponsor) in connection with the FS Development Platform conducted by Seller or its Affiliates (including any Acquired Entity’s information technology systems Company) or, to the Seller Parties’ Seller’s Knowledge, the information technology systems by any other Person (with respect to any Owned IP Rights acquired by Seller or its Affiliates from such Person), which has resulted in any valid claim of third Persons right to, ownership of or other Lien (other than any Permitted Lien) on any Owned IP Rights, in each case, except as would not be materially adverse to the extent used by FS Development Platform. Seller and its Affiliates have not participated in any standards-setting activities or on behalf joined or been a member of any standards setting, IP Rights sharing or Open Source Software projects or organizations that would adversely affect the proprietary nature of any Owned IP Rights material to the FS Development Platform, or restrict the ability of the Acquired EntityCompanies to enforce, and (ii) there have been no disruptions in license or exclude others from using any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans and systems that reasonably address its assessment of riskOwned IP Rights material to the FS Development Platform.
Appears in 1 contract
IP Rights. (a) Each Acquired Entity owns, or has valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), and immediately following the consummation Part 3.6 of the transactions contemplated hereby, will own or have valid rights to use, free and clear Company Disclosure Schedule sets forth a list (as of any Lien thereon (except for any Permitted Lien), all IP Rights used or held for use in, or necessary for, the conduct date of its businesses in the manner in which they are currently being conducted.
(b) Section 2.8(bthis Agreement) of the Seller Disclosure Schedule lists all of U.S. and foreign (i) issued patents and patent applications (published or unpublished)applications, (ii) trademark registrations trademark, service xxxx and applications and material unregistered trademarks, (iii) domain names, (iv) copyright name registrations and applications and (viii) material softwarecopyright registrations and applications, in each case which is owned or purported to be owned by an Acquired Entity in the Company or any jurisdiction of its Subsidiaries (collectively, the "Scheduled IP"). The Company or one of its Subsidiaries owns, free of all liens and security interests (other than Permitted Encumbrances), all Company IP. No such Company IP is subject to any license granted by the Company or any of its Subsidiaries to any other Person (other than implied licenses arising from sales of products and nonexclusive licenses granted in the world. Except as disclosed in Section 2.8(bordinary course of business).
(b) To the knowledge of the Seller Disclosure ScheduleCompany, an Acquired Entity is the sole Company or one of its Subsidiaries owns and exclusive beneficial andhas good title to, for applications and registrations (including patents)or has a valid right to use, record owner of all each of the IP Rights necessary to enable the Company and its Subsidiaries to conduct their business in the manner in which their business is currently being conducted. All material registered trademarks, issued patents and registered copyrights and mask works listed in Section 2.8(b) Part 3.6 of the Seller Company Disclosure Schedule or otherwise owned by the Company and its Subsidiaries are subsisting and, to the Seller Parties’ Knowledgeknowledge of the Company, all such IP Rights are valid, enforceable and subsisting.
(c) The Acquired Entities Company has a policy of requiring all employees of the Company and its Subsidiaries to sign a proprietary information and invention assignment agreement in the standard form that has been made available to Parent, and, to the knowledge of the Company, there are not subject to any Orders or settlement agreements that limit the Acquired Entities’ ownership no material breaches of any material IP Rightssuch policy.
(d) Except as would The Company is not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, there is no, engaging (and since January 1, 2016 there 2003 has not been anyengaged) in any patent or copyright misuse or any fraud or inequitable conduct with respect to its patent applications, Claim pending (ortrademark or service xxxx applications or copyright or mask work registration applications. To the knowledge of the Company, to neither the Seller Parties’ Knowledgematerial current products of the Company or its Subsidiaries nor the conduct of the business of the Company or its Subsidiaries infringes, threatened) (i) alleging misappropriates or asserting that any Acquired Entity is or was infringing otherwise violates any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the right to use, any IP Rights owned by any Acquired Entity or (ii) by any Acquired Entity against any other Person that is or was based on any Claim that another Person is infringing any IP Rights owned by such Acquired EntityPerson. Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (1) since January 1, 2016, the conduct As of the businesses date of each Acquired Entity has not infringedthis Agreement, misappropriated or otherwise violated any IP Rights owned by any other Person and no Legal Proceeding is pending (2) or, to the Seller Parties’ Knowledgeknowledge of the Company, no Person is being threatened) against the Company or any of its Subsidiaries with respect to any claim that the Company or any of its Subsidiaries is infringing, misappropriating or otherwise violating any IP Rights owned by any other Person or that any material Company IP is invalid. To the knowledge of the Company as of the date of this Agreement, no other Person is infringing, misappropriating or otherwise violating any Company IP.
(e) Neither the Company nor any of its Subsidiaries has published or otherwise made publicly available any of its trade secrets that are material to the Company's business as currently conducted, except in the course of filing and prosecuting patent applications.
(f) The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment by the Company or its Subsidiaries of any additional amounts with respect to, nor require the consent of any other Person in respect of, the Company's and its Subsidiaries' right to own, use or hold for use by the Company and its Subsidiaries any of the material IP Rights as owned, used or held for use by any Acquired Entity in the conduct of their businesses.
(e) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect:
(i) each Acquired Entity has taken reasonable steps to protect the confidentiality of its Trade Secrets;
(ii) except as described in Section 2.8(e)(ii) business of the Seller Disclosure ScheduleCompany and its Subsidiaries as currently conducted, except for any loss, impairment, payment or consent that may result from, or be required as a result of, any contracts, orders, stipulations or other duties or obligations of Parent, Acquisition Sub or any other Affiliate of Parent that exist at or prior to the Seller Parties’ Knowledge, there has not been any disclosure Acceptance Time or independently of or access to any material Trade Secret of any of the Acquired Entities (including any such information of any other Person disclosed in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in and to such information;
(iii) since January 1, 2016, each Acquired Entity has complied with all applicable Laws, as well as its own rules, policies and procedures, relating to privacy, data protection, and the collection, retention, protection and use of Personal Information collected, used, or held for use by any Acquired Entity;
(iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or Personal Information or data rights by such Acquired Entity;
(v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that is collected by such Acquired Entity against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and
(vi) each Acquired Entity also takes commercially reasonable measures to protect the confidentiality, integrity and availability of all such Personal Information in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information and the unauthorized use or disclosure of such Personal Informationthis Agreement.
(f) Except as described in Section 2.8(f) of the Seller Disclosure Schedule or as otherwise would not (and would not reasonably be expected to) result in, individually or in the aggregate, a Material Adverse Effect, since January 1, 2016, (i) there have been no security breaches in any Acquired Entity’s information technology systems or, to the Seller Parties’ Knowledge, the information technology systems of third Persons to the extent used by or on behalf of any Acquired Entity, and (ii) there have been no disruptions in any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans and systems that reasonably address its assessment of risk.
Appears in 1 contract
IP Rights. (a) Each Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Acquired Entity ownsEntities own, or has valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), and immediately following the consummation of the transactions contemplated hereby, will own or have valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), all IP Rights that are being used or held for use in, or are necessary for, the conduct of its their businesses in the manner in which they are currently being conducted.
(b) Section 2.8(b) of the Seller Company Disclosure Schedule lists sets forth a complete list of all of (i) issued patents and patent applications (published or unpublished)applications, (ii) trademark registrations and applications applications, domain names and material unregistered trademarks, trademarks and (iii) domain names, (iv) copyright registrations and applications and (v) unregistered copyrights in software material softwareto the conduct of the businesses of the Acquired Entities, in each case which is owned or purported to be owned by an the Acquired Entity Entities in any jurisdiction in the world. Except as disclosed in Section 2.8(b) of the Seller Disclosure Schedule, an The Acquired Entity is Entities are the sole and exclusive beneficial and, for with respect to applications and registrations (including patents), record owner owners of all of the IP Rights listed set forth in Section 2.8(b) of the Seller Company Disclosure Schedule andSchedule. All registered trademarks, to registered service marks, patents and registered copyrights owned by the Seller Parties’ Knowledge, all such IP Rights Acquired Entities are valid, enforceable subsisting, and subsistingto the Knowledge of the Company, enforceable.
(c) The Acquired Entities are not subject to any Orders or settlement agreements that limit the Acquired Entities’ ownership of any material IP Rights.
(d) Except as would has not and had or would not reasonably be expected to result inhave, individually or in the aggregate, a Material Adverse Effect: (i) the conduct of the businesses of the Acquired Entities, there is noincluding any product or service marketed or sold by the Company or any of the other Acquired Entities, has not infringed, misappropriated or otherwise violated, and since January 1does not infringe, 2016 there has not been anymisappropriate or otherwise violate, Claim any IP Rights owned by any other Person; (ii) no Person is infringing, misappropriating or otherwise violating any IP Rights owned by the Acquired Entities; and (iii) the Acquired Entities have taken commercially reasonable steps to protect their IP Rights and to maintain the confidentiality of their trade secrets. No lawsuit, court action or other court proceeding (“Legal Proceeding”) or other claim is pending (or, to the Seller Parties’ KnowledgeKnowledge of the Company, is being threatened) or in the past three (3) years was pending (or, to the Knowledge of the Company, threatened), (x) (i) alleging or asserting against any of the Acquired Entities that is based upon any claim that any of the Acquired Entity Entities is or was infringing any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the right to use, any IP Rights owned by any of the Acquired Entity Entities or (iiy) by any of the Acquired Entity Entities against any other Person that is or was based on upon any Claim claim that another Person is infringing any IP Rights owned by such the Acquired Entity. Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (1) since January 1, 2016, the conduct of the businesses of each Acquired Entity has not infringed, misappropriated or otherwise violated any IP Rights owned by any other Person and (2) to the Seller Parties’ Knowledge, no Person is infringing, misappropriating or otherwise violating any IP Rights owned, used or held for use by any Acquired Entity in the conduct of their businessesEntities.
(ed) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect:
(i) each Acquired Entity has taken reasonable steps to protect the confidentiality of its Trade Secrets;
(ii) except as described in Section 2.8(e)(ii) of the Seller Disclosure Schedule, to the Seller Parties’ Knowledge, there has not been any disclosure of or access to any material Trade Secret of any of the The Acquired Entities (including any such take commercially reasonable measures to ensure that personal information of any other Person disclosed in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in and to such information;
(iii) since January 1, 2016, each Acquired Entity has complied with all applicable Laws, as well as its own rules, policies and procedures, relating to privacy, data protection, and the collection, retention, protection and use of Personal Information collected, used, or held for use by any or on behalf of the Acquired Entity;
(iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation Entities in the conduct of any Person’s privacy or Personal Information or data rights by such Acquired Entity;
(v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that their businesses is collected by such Acquired Entity protected against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and
(vi) each . The Acquired Entity Entities also takes take commercially reasonable measures to protect ensure the confidentiality, integrity and availability of all such Personal Information information in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information information and the unauthorized use or disclosure of such Personal Informationinformation.
(e) Section 2.8(e) of the Company Disclosure Schedule sets forth a true and complete list of all Contracts for material software used or held for use in the business of the Acquired Entities (other than commercially available shrink-wrap or off-the-shelf software that has an acquisition price of less than $50,000 per unit or $100,000 per year). With respect to the use of software in the businesses of the Acquired Entities, (i) no future capital expenditures are necessary with respect to such use other than capital expenditures in the ordinary course of business consistent with the past practice of the Acquired Entities, and (ii) the Acquired Entities have not experienced any material defects in such software, including any material error or omission in the processing of any transactions other than defects which have been corrected. During the three (3) years prior to the date of this Agreement, (x) there have been no material security breaches in the Acquired Entities’ information technology systems, and (y) there have been no disruptions in any of the Acquired Entities’ information technology systems that materially adversely affected the Acquired Entities’ businesses or operations. The Company and its Subsidiaries have evaluated their disaster recovery and backup needs and have implemented plans and systems that commercially reasonably address their assessment of risk. With respect to the software used or held for use in the businesses of the Acquired Entities, to the Knowledge of the Company, (A) no such software contains any device or feature designed to disrupt, disable, or otherwise impair the functioning of any software, (B) the Acquired Entities have not delivered, licensed or made available, and the Acquired Entities have no duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any such software owned by the Acquired Entities to any escrow agent or other Person who is not, as of the date of this Agreement, an employee of an Acquired Entity, and (C) no such software owned by the Acquired Entities is subject to the terms of any “open source” or other similar license that provides for any source code of such software to be disclosed, licensed, publicly distributed or dedicated to the public.
(f) Except as described in Section 2.8(f) of the Seller Disclosure Schedule has not had or as otherwise would not (and would not reasonably be expected to) result into have, individually or in the aggregate, a Material Adverse Effect, since January 1the consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment of any additional amounts (other than those amounts that would be payable had the consummation of the transactions contemplated by this Agreement not taken place) with respect to, 2016, (i) there have been no security breaches nor require the consent of any other Person in any Acquired Entity’s information technology systems or, to the Seller Parties’ Knowledgerespect of, the information technology systems Acquired Entities’ right to own, use or hold for use any of third Persons to the extent IP Rights owned, used by or on behalf held for use in the conduct of any Acquired Entity, and (ii) there have been no disruptions in any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans and systems that reasonably address its assessment of risktheir businesses.
Appears in 1 contract
IP Rights. (a) Each Acquired Entity ownsPart 2.8(a) of the Disclosure Schedule sets forth a complete list, along with the jurisdiction and applicable registration or serial number, of all patents, registered marks or trade dress, registered copyrights, registered mask works, registered designs, and registered domain names, along with all pending applications to issue or register the same, owned by the Company or any Subsidiary (the “Registered IP”). The Company or one of its Subsidiaries is the sole and exclusive owner of all Registered IP and all Company IP, free of all liens and security interests (other than Permitted Encumbrances). Neither the Company nor any of its Subsidiaries has granted any exclusive license to any such Registered IP or Company IP to any other Person (other than licenses which have expired, have been terminated or are no longer in effect for any other reason). The Registered IP that is issued is valid, subsisting and enforceable and (to the Knowledge of the Company), the Registered IP that is registered but not yet issued is valid, subsisting and enforceable, and, to the Knowledge of the Company as of the date of this Agreement, no action is threatened in writing or pending challenging the validity or enforceability of any Registered IP that is issued or registered. To the Knowledge of the Company, no third party has infringed or misappropriated, or has valid rights to useis infringing or misappropriating, free and clear of any Lien thereon (except for any Permitted Lien), and immediately following the consummation material IP Right of the transactions contemplated hereby, will own Company or have valid rights any Subsidiary.
(b) The Company and each of its Subsidiaries has the right and operational ability to use, free and clear of any Lien thereon (except for any Permitted Lien), exploit all IP Rights used or held for use in, or necessary for, to enable the Company and its Subsidiaries to conduct of its businesses their business substantially in the manner in which they are their business is currently being conducted.
(b) Section 2.8(b) . Neither the Company nor any Subsidiary has infringed, improperly disclosed or misappropriated the IP Rights of any third party. Neither the Seller Disclosure Schedule lists all Company nor any Subsidiary has been the subject of any suit, arbitration or administrative proceeding since January 1, 2007 alleging, or received any other written notices from any third party since January 1, 2007: (i) issued patents and patent applications (published alleging that the Company or unpublished)any Subsidiary has infringed, improperly disclosed, misappropriated, converted or otherwise damaged the IP Rights of any third party; or (ii) trademark registrations and applications and material unregistered trademarks, (iii) domain names, (iv) copyright registrations and applications and (v) material software, inviting or demanding that the Company or a Subsidiary take a license in each case which is owned or purported order to be owned by an Acquired Entity in any jurisdiction in avoid the world. Except as disclosed in Section 2.8(b) future infringement of the Seller Disclosure Schedule, an Acquired Entity is the sole and exclusive beneficial and, for applications and registrations (including patents), record owner of all of the IP Rights listed in Section 2.8(b) of the Seller Disclosure Schedule and, to the Seller Parties’ Knowledge, all such IP Rights are valid, enforceable and subsistinga third party.
(c) The Acquired Entities are not subject Neither the Company nor any Subsidiary has entered into, except in the ordinary course of business under standard forms of the Company’s or its Subsidiaries’ Contracts made available to Parent, any Orders written agreement to indemnify, defend or settlement agreements that limit hold harmless any third party for or against any infringement, misappropriation, or other conflict with the Acquired Entities’ ownership IP Rights of any material third party. There are no suits or actions pending or, to the Knowledge of the Company, threatened against the Company or any Subsidiary in which it is alleged that the Company or any Subsidiary has infringed, misappropriated or improperly disclosed the IP RightsRights of any third party.
(d) Except as would not The Company and would not reasonably be expected to result in, individually or in its Subsidiaries have taken and are taking the aggregate, a Material Adverse Effect, there is no, and since January 1, 2016 there has not been any, Claim pending (orfollowing steps, to the Seller Parties’ Knowledgeextent that such steps are commercially reasonable and necessary to establish, threatened) (i) alleging perfect, and defend their ownership of Registered IP and Company IP or asserting that any Acquired Entity is or was infringing any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the their right to use, any use licensed third party IP Rights owned by any Acquired Entity or (ii) by any Acquired Entity against any other Person that is or was based on any Claim that another Person is infringing any IP Rights owned by such Acquired Entity. Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (1) since January 1, 2016, the conduct of the businesses of each Acquired Entity has not infringed, misappropriated or otherwise violated any IP Rights owned by any other Person and (2) to the Seller Parties’ Knowledge, no Person is infringing, misappropriating or otherwise violating any IP Rights owned, used or held for use by any Acquired Entity in the conduct of their businesses.
(e) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse EffectRights:
(i) each Acquired Entity has taken reasonable steps to protect the confidentiality of its Trade Secrets;
using appropriate patent, trademark and copyright designations on products and in marketing materials; (ii) except as described complying with all legal requirements and all filings, payments, and other actions required to be made or taken to maintain each item of Registered IP in Section 2.8(e)(ii) of the Seller Disclosure Schedule, to the Seller Parties’ Knowledge, there has not been any disclosure of or access to any material Trade Secret of any of the Acquired Entities (including any such information of any other Person disclosed in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in full force and to such information;
effect; (iii) since January 1, 2016, each Acquired Entity has complied with requiring all applicable Laws, as well as its own rules, policies employees and procedures, relating to privacy, data protection, and contractors who have invented inventions covered by patents owned by the collection, retention, protection and use of Personal Information collected, usedCompany or Subsidiary, or held for use by any Acquired Entity;
(iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or Personal Information or data rights by such Acquired Entity;
(v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that is collected by such Acquired Entity against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and
(vi) each Acquired Entity also takes commercially reasonable measures to protect the confidentiality, integrity and availability of all such Personal Information were involved in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information and the unauthorized use or disclosure of such Personal Information.
(f) Except as described in Section 2.8(f) of the Seller Disclosure Schedule or as otherwise would not (and would not reasonably be expected to) result in, individually or in the aggregate, a Material Adverse Effect, since January 1, 2016, (i) there have been no security breaches in any Acquired Entity’s information technology systems or, to the Seller Parties’ Knowledge, the information technology systems of third Persons to the extent used by or on behalf of any Acquired Entity, and (ii) there have been no disruptions in any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans and systems that reasonably address its assessment of risk.the
Appears in 1 contract
IP Rights. (a) Each Acquired Entity owns, or has valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien)) all Business IP Rights necessary for the conduct of the Business in the Ordinary Course of Business. All Business IP Rights are valid, subsisting, enforceable and in full force and effect. None of the Business IP Rights are subject to any Contract obligation that restricts any Acquired Entity’s rights to exploit, enforce or defend any Business IP Rights in any material respect. Except as would not be material to the Acquired Entities taken as a whole, each of the Acquired Entities has taken all commercially reasonable steps to obtain, maintain, and immediately following protect the consummation Business IP Rights, including, where appropriate, registering Business IP Rights. Following the Closing, Buyers will be permitted to cause to be exercised all of the rights of the Acquired Entities under the Business IP Rights to the same extent the Acquired Entities would have been able had the transactions contemplated hereby, will own or have valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), all IP Rights used or held for use in, or necessary for, the conduct of its businesses in the manner in which they are currently being conductedby this Agreement not occurred.
(b) Section 2.8(b3.7(b) of the Seller Disclosure Schedule lists all of (i) issued patents and patent applications (published or unpublished), (ii) trademark registrations and applications and material unregistered trademarksapplications, (iii) domain names, and (iv) copyright registrations and applications and (v) material softwareapplications, in each case which is owned or purported to be owned by an Acquired Entity in any jurisdiction are included in the world. Except as disclosed in Section 2.8(b) of the Seller Disclosure Schedule, an Acquired Entity is the sole and exclusive beneficial and, for applications and registrations (including patents), record owner of all of the Business IP Rights listed in Section 2.8(b) of the Seller Disclosure Schedule and, to the Seller Parties’ Knowledge, all such (“Registered Business IP Rights”). All Registered Business IP Rights are validcurrently applied for, enforceable registered, or held in the name of the applicable Acquired Entity. All filings, payments and subsistingother actions required to be made or taken to obtain, perfect or maintain in full force and effect each item of Business Registered IP Rights have been made or taken by the applicable deadline and otherwise in accordance with all applicable Laws.
(c) The Acquired Entities are conduct of the Business, as currently conducted and as has been conducted within the past five (5) years, does not subject infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, any IP Rights owned by any other Person and to the Company’s Knowledge, no Person is or has been within the past five (5) years, infringing, misappropriating or otherwise violating any Orders or settlement agreements that limit the Acquired Entities’ ownership of any material Business IP Rights.
(d) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, there . No Claim is no, and since January 1, 2016 there has not been any, Claim pending (or, to the Seller Parties’ Company’s Knowledge, threatenedhas been threatened in writing within the past five (5) years, (iA) alleging or asserting against any Acquired Entity that is based upon any Claim that such Acquired Entity is or was infringing infringing, misappropriating or otherwise violating any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the right to use, any Business IP Rights owned by any Acquired Entity or (iiB) by any Acquired Entity against any other Person that is or was based on upon any Claim that another Person is infringing any IP Rights owned by such Acquired Entity. Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (1) since January 1, 2016, the conduct of the businesses of each Acquired Entity has not infringed, misappropriated or otherwise violated any IP Rights owned by any other Person and (2) to the Seller Parties’ Knowledge, no Person is infringing, misappropriating or otherwise violating any Business IP Rights, or challenging the scope, validity, enforceability or ownership of, or the right to use, any IP Rights ownedof any other Person.
(d) Except as would not be material to the Acquired Entities, used each current and former employee and contractor of Parent or held any of its Subsidiaries who has created Business IP Rights for use by any an Acquired Entity has executed a written agreement assigning to an Acquired Entity any and all of such person’s right, title and interest in any Business IP Rights that were created, developed, reduced to practice, contributed to, modified or improved by such Person in connection with services to an Acquired Entity, to the conduct extent such rights do not automatically vest in such Acquired Entity under applicable Law. No current or former equity holder, partner, director, officer or employee of their businessesParent or any of its Subsidiaries owns, licenses to an Acquired Entity or retains any rights, title or interest in or to any Business IP Rights.
(e) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect:
(i) each Each Acquired Entity takes and has taken reasonable steps designed to protect and maintain the status of the confidentiality of its material confidential IP Rights (including all Trade Secrets;
(ii) except as described owned by or disclosed in Section 2.8(e)(ii) of confidence to such Acquired Entity. To the Seller Disclosure Schedule, to the Seller Parties’ Company’s Knowledge, there has not been any unauthorized disclosure of or unauthorized access to any material confidential IP Rights (including any Trade Secret Secret) of any of the Acquired Entities (including any such information of any other Person disclosed in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in and to such information;
(iii) since January 1, 2016, each Acquired Entity has complied with all applicable Laws, as well as its own rules, policies and procedures, relating to privacy, data protection, and the collection, retention, protection and use of Personal Information collected, used, or held for use by any Acquired Entity;
(iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or Personal Information or data rights by such Acquired Entity;
(v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that is collected by such Acquired Entity against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and
(vi) each Acquired Entity also takes commercially reasonable measures to protect the confidentiality, integrity and availability of all such Personal Information in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information and the unauthorized use or disclosure of such Personal Information.
(f) Except as described in Section 2.8(f) of the Seller Disclosure Schedule or as otherwise would not (and would not reasonably be expected to) result in, individually or in the aggregate, a Material Adverse Effect, since January 1, 2016, (i) there have been no security breaches in any Acquired Entity’s information technology systems or, to the Seller Parties’ Knowledge, the information technology systems of third Persons to the extent used by or on behalf of any Acquired Entity, and (ii) there have been no disruptions in any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans and systems that reasonably address its assessment of risk.
Appears in 1 contract
Samples: Securities Purchase Agreement (Astrana Health, Inc.)
IP Rights. (a) Each Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Acquired Entity ownsEntities own, or has valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), and immediately following the consummation of the transactions contemplated hereby, will own or have valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien)use or license, all IP Rights used or held for use in, or necessary for, in the conduct of its their businesses substantially in the manner in which they are currently being conducted.
(b) Section 2.8(b) of the Seller Disclosure Schedule lists all of (i) issued patents and patent applications (published or unpublished), (ii) trademark registrations and applications and material unregistered trademarks, (iii) domain names, (iv) copyright registrations and applications and (v) material software, in each case which is owned or purported to be owned by an Acquired Entity in any jurisdiction in the world. Except as disclosed in Section 2.8(b) of the Seller Disclosure Schedule, an Acquired Entity is the sole and exclusive beneficial and, for applications and registrations (including patents), record owner of all of the IP Rights listed in Section 2.8(b) of the Seller Disclosure Schedule and, to the Seller Parties’ Knowledge, all such IP Rights are valid, enforceable and subsisting.
(c) The Acquired Entities are not subject to any Orders or settlement agreements that limit the Acquired Entities’ ownership of any material IP Rights.
(d) Except as would not have and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, there is no, and since January 1, 2016 there has not been any, Claim pending (or, to the Seller Parties’ Knowledge, threatened) (i) alleging or asserting that any Acquired Entity is or was infringing any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the right to use, any IP Rights owned by any Acquired Entity or (ii) by any Acquired Entity against any other Person that is or was based on any Claim that another Person is infringing any IP Rights owned by such Acquired Entity. Except as would not and would not reasonably be expected to result inhave, individually or in the aggregate, a Material Adverse Effect, (1i) since January 1Section 2.6(b) of the Company Disclosure Schedule sets forth, 2016as of the date of this Agreement, all registered or applied for trademarks, service marks, patents, copyrights, domain names owned or purported to be owned by the Company and its Subsidiaries (excluding, for the avoidance of doubt, any such registrations or applications that have lapsed, expired or been abandoned), and such registrations and applications are subsisting and unexpired and, to the Knowledge of the Company, such registrations are valid and enforceable; (ii) the conduct of the businesses of each Acquired Entity the Company and its Subsidiaries, including any product or service marketed or sold by the Company and its Subsidiaries, has not infringedsince June 30, misappropriated 2016 infringed or otherwise violated misappropriated, and does not infringe or misappropriate, any IP Rights owned by any other Person and Person; (2iii) to the Seller Parties’ KnowledgeKnowledge of the Company, no other Person is infringing, infringing or misappropriating or otherwise violating any IP Rights ownedowned by the Company and its Subsidiaries and (iv) the Company and its Subsidiaries exclusively own all of the IP Rights owned or purported to be owned by them free and clear of any Liens, used or held for use by any Acquired Entity in the conduct of their businesses.
(e) other than Permitted Liens. Except as would not have and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect:
(i) each Acquired Entity has taken reasonable steps to protect the confidentiality of its Trade Secrets;
(ii) except as described in Section 2.8(e)(ii) of the Seller Disclosure Schedule, to the Seller Parties’ Knowledge, there has not been any disclosure of or access to any material Trade Secret of any of the Acquired Entities (including any such information of any other Person disclosed in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in and to such information;
(iii) since January 1, 2016, each Acquired Entity has complied with all applicable Laws, as well as its own rules, policies and procedures, relating to privacy, data protection, and the collection, retention, protection and use of Personal Information collected, used, or held for use by any Acquired Entity;
(iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or Personal Information or data rights by such Acquired Entity;
(v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that is collected by such Acquired Entity against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and
(vi) each Acquired Entity also takes commercially reasonable measures to protect the confidentiality, integrity and availability of all such Personal Information in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information and the unauthorized use or disclosure of such Personal Information.
(f) Except as described in Section 2.8(f) of the Seller Disclosure Schedule or as otherwise would not (and would not reasonably be expected to) result inhave, individually or in the aggregate, a Material Adverse Effect, since January 1(x) the Company and its Subsidiaries have taken commercially reasonable steps to protect their IP Rights and to maintain the confidentiality of their trade secrets and the security, 2016integrity and continuous operation of the software, websites, applications, databases, systems, networks and information technology assets and infrastructure used in their businesses (iand the data stored thereon) (“IT Assets”), and, to the Knowledge of the Company, there have been no security breaches breaches, losses, violations or unauthorized access or use of same other than those that did not result in any Acquired Entity’s information technology systems orduty to report or mitigate, loss or liability; (y) no proprietary software of the Company or its Subsidiaries that is licensed, distributed or conveyed to third parties contains, incorporates, is based upon or derived from or otherwise interacts with any software subject to an “open source” or similar license that would require the Seller Parties’ Knowledge, the information technology systems of third Persons Company or its Subsidiaries to the extent used by license or on behalf of any Acquired Entity, make available its proprietary source code in such circumstances; and (iiz) there have been no disruptions in Person other than the Company and its Subsidiaries has accessed or possessed (or has any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans current or contingent right to access or possess) any proprietary source code owned by the Company and systems that reasonably address its assessment of riskSubsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Zayo Group LLC)
IP Rights. (a) Each Acquired Entity owns(i) Section 3.6(a)(i) of the Company Disclosure Schedule sets forth a complete list of all patents, registered marks, registered trade dress, registered copyrights, and registered domain names, along with all pending applications for any of the foregoing, owned by the Company or any Subsidiary as of the date hereof (the “Registered IP”); (ii) the Company or one of its Subsidiaries is the sole and exclusive owner of all Registered IP and all Company IP, free of all liens other than Permitted Encumbrances; and (iii) neither the Company nor any of its Subsidiaries has granted any licenses to such Registered IP or to any other Company IP to any other Person, other than (A) nonexclusive licenses granted in the ordinary course in conjunction with the distribution or provision of components, products or services of Company and its Subsidiaries, or has valid rights (B) licenses which have expired, been terminated or are no longer in effect for any other reason. The Registered IP that is issued or registered is valid, subsisting and enforceable, and, to usethe Knowledge of the Company, free and clear no action is threatened in writing or pending challenging the validity or enforceability of any Lien thereon (except for any Permitted Lien), and immediately following Registered IP or other Company IP that is issued or registered. To the consummation Knowledge of the transactions contemplated herebyCompany, will own no third party is infringing any material IP Right of the Company or have valid rights to use, free and clear of any Lien thereon (except for any Permitted Lien), all IP Rights used or held for use in, or necessary for, the conduct of its businesses in the manner in which they are currently being conductedSubsidiary.
(b) Section 2.8(b) of The Company and/or its wholly owned Subsidiaries have entered into valid and enforceable agreements under which the Seller Disclosure Schedule lists all of (i) issued patents and patent applications (published Company or unpublished), (ii) trademark registrations and applications and material unregistered trademarks, (iii) domain names, (iv) copyright registrations and applications and (v) material software, in each case which is its wholly owned or purported to be owned by an Acquired Entity in any jurisdiction in the world. Except as disclosed in Section 2.8(b) of the Seller Disclosure Schedule, an Acquired Entity is the sole and exclusive beneficial and, for applications and registrations (including patents), record owner of Subsidiaries have acquired all of the IP Rights listed membership interests in Section 2.8(b) of the Seller Disclosure Schedule and, to the Seller Parties’ Knowledge, all such IP Rights are valid, enforceable and subsistingAD Technologies LLC.
(c) The Acquired Entities are not subject to any Orders or settlement agreements that limit the Acquired Entities’ ownership of any material IP Rights.
(d) Except as would not and would not reasonably be expected to result in, individually or in the aggregate, cause a Material Adverse Effect, there is no, and since January 1, 2016 there has not been any, Claim pending (or, to the Seller Parties’ Knowledge, threatened) (i) alleging or asserting that any Acquired Entity is or was infringing any IP Rights owned by any other Person or challenging the scope, validity, enforceability or ownership of, or the right to use, any IP Rights owned by any Acquired Entity or (ii) by any Acquired Entity against any other Person that is or was based on any Claim that another Person is infringing any IP Rights owned by such Acquired Entity. Except as would not and would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries has the right and operational ability to exploit all IP Rights necessary to enable the Company to conduct its business substantially in the manner in which its business is currently being conducted; (ii) neither the Company nor any Subsidiary has infringed, improperly disclosed or misappropriated the IP Rights of any third party; and (iii) neither the Company nor any Subsidiary has been the subject of any Legal Proceeding, or received any other written notices from any third party: (1) since January 1alleging that the Company or any Subsidiary has infringed, 2016improperly disclosed, misappropriated, converted or otherwise damaged the conduct IP Rights of any third party; or (2) inviting or demanding that the Company or a Subsidiary take a license in order to avoid the future infringement of IP Rights of a third party.
(d) Neither the Company nor any Subsidiary has entered into, except in the ordinary course of business, any written agreement to indemnify, defend or hold harmless any third party for or against any infringement, misappropriation or other conflict with the IP rights of any third party. Except as set forth on Section 3.6(d) of the businesses of each Acquired Entity Company Disclosure Schedule, there are no Legal Proceedings pending against the Company or any Subsidiary in which it is alleged that the Company or any Subsidiary has not infringed, misappropriated or otherwise violated any improperly disclosed the IP Rights owned by of any other Person and (2) to the Seller Parties’ Knowledge, no Person is infringing, misappropriating or otherwise violating any IP Rights owned, used or held for use by any Acquired Entity in the conduct of their businessesthird party.
(e) Except as would not The Company and would not reasonably be expected its Subsidiaries have taken and are taking the following steps, to result inthe extent that such steps are commercially reasonable and necessary to establish, individually perfect, and defend their ownership of Registered IP and Company IP or in the aggregate, a Material Adverse Effecttheir right to use licensed third party IP Rights:
(i) each Acquired Entity has taken using appropriate patent, trademark and copyright designations on products and in marketing materials; (ii) requiring all employees and contractors who have invented inventions covered by patents owned by the Company or Subsidiary to assign all rights and interests in such inventions to the Company or the relevant Subsidiary; and (iii) taking reasonable steps to protect trade secret information, including requiring a non-disclosure agreement before trade secret information is disclosed to a third party. The Company and its Subsidiaries, have complied, in all material respects, with applicable Legal Requirements relating to the confidentiality fair and proper use of its Trade Secrets;
(ii) except as described in Section 2.8(e)(ii) personally identifiable information of customers, employees and contractors of the Seller Disclosure ScheduleCompany and its Subsidiaries. To the Knowledge of the Company, no confidential or trade secret information of the Company, or personally identifiable information in the possession, custody or control of the Company or any Subsidiary has been lost, stolen or improperly disclosed. All persons identified as inventors in the patents solely owned by the Company or any Subsidiary have assigned all of their rights in the relevant inventions to the Seller Parties’ KnowledgeCompany, there has not been any disclosure of relevant Subsidiary or access to any material Trade Secret of any of the Acquired Entities (including any such information of any other Person disclosed predecessor in confidence to any of the Acquired Entities) to any Person in a manner that has resulted or is likely to result in the loss of Trade Secret or other rights in and to such information;
(iii) since January 1, 2016, each Acquired Entity has complied with all applicable Laws, as well as its own rules, policies and procedures, relating to privacy, data protection, and the collection, retention, protection and use of Personal Information collected, used, or held for use by any Acquired Entity;
(iv) since January 1, 2016, no Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or Personal Information or data rights by such Acquired Entity;
(v) each Acquired Entity takes commercially reasonable measures to protect Personal Information that is collected by such Acquired Entity against unauthorized access, use, modification, disclosure or other misuse, including through administrative, technical and physical safeguards; and
(vi) each Acquired Entity also takes commercially reasonable measures to protect the confidentiality, integrity and availability of all such Personal Information in electronic format and protect against reasonably anticipated threats or hazards to the security of such Personal Information and the unauthorized use or disclosure of such Personal Informationinterest thereof.
(f) Except as described for third party Software commercially available in Section 2.8(f) the market for licensing on standard or original equipment manufacturer terms, all Software sold or licensed by Company or its Subsidiaries to the customers of the Seller Disclosure Schedule Company and its Subsidiaries independently or as otherwise would not bundled with other components, products or services of the Company and its Subsidiaries, is free to be licensed or sold on the terms such Software is licensed or sold.
(g) The Company, directly or through its Subsidiaries, is in actual possession of or has necessary control over the source code and would not object code of all material Software owned by the Company or any Subsidiary. Neither the Company nor any Subsidiary has disclosed to any third party any source code of such Software owned by the Company or any Subsidiary except pursuant to development agreements, manufacturing agreements or written source code escrow agreements containing license and confidentiality terms that reasonably be expected toprotect the Company’s rights in such Software; and neither the Company nor any of its Subsidiaries is obligated to support or maintain any of such Software except pursuant to agreements that will terminate by their terms or are terminable by the Company (other than for cause) result inon a periodic basis and that provide for one or more payments to the Company or Subsidiary for the period of such services.
(h) No Governmental Entity, individually nor any university, college or in academic institution has financially sponsored research and development conducted by the aggregateCompany or its Subsidiaries, a Material Adverse Effect, since January 1, 2016, (i) there have been no security breaches in any Acquired Entity’s information technology systems or, to the Seller Parties’ KnowledgeKnowledge of the Company, has rights in Software or IP Rights purported to be owned by the information technology systems of third Persons Company or any Subsidiary; and neither the Company nor any Subsidiary has participated in any standards-setting activities or joined any standards-setting or similar organizations that, to the extent used by or on behalf Knowledge of the Company, would affect the proprietary nature of any Acquired EntitySoftware or IP Rights purported to be owned by the Company or any Subsidiary or restrict the ability of the Company or any of its Subsidiaries to enforce, license or exclude others from using any Software or IP Rights purported to be owned by the Company or any Subsidiary.
(i) None of the Software owned, used or distributed by the Company or any Subsidiary and incorporated by the Company or any Subsidiary into its products or services contain any open source code or other code or technology which would (ii1) there have been no disruptions in require the public disclosure, third party distribution, or general licensing of material Software or other IP Rights owned by the Company or any Acquired Entity’s information technology systems. Each Acquired Entity has implemented commercially reasonable plans and systems that reasonably address its assessment Subsidiary, (2) materially limit the ability of riskthe Company or a Subsidiary to license or charge fees or royalties for such Software or IP Rights, or (3) require the Company or a Subsidiary to permit the reverse engineering, decompilation, disassembly or creation of derivative works based upon of material Software owned by the Company or a Subsidiary.
Appears in 1 contract
Samples: Merger Agreement (Acer Inc)
