Common use of No Infringement by the Company Clause in Contracts

No Infringement by the Company. The operation of the business of the Company as currently conducted and, with respect to Future Products, as currently proposed by the Company to be conducted, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, delivery, sale and licensing out of any Company Product, as each is or has been conducted by or on behalf of the Company, has not and does not infringe or misappropriate and will not infringe or misappropriate when conducted in substantially the same manner by Parent and/or the Company following the Closing, any Intellectual Property Rights of any Person, violate any right of any Person (including any right to privacy or publicity) or constitute unfair competition or trade practices under the laws of any jurisdiction; provided, however, that the foregoing representations and warranties solely as to the operation of the business as proposed to be conducted by the Company (but not as such has been or is conducted by the Company), with respect to Future Products (other than Updates) but not Near-Term Future Products or Updates, are made to the Company’s Knowledge; provided, further that the foregoing representations and warranties do not extend to infringement, misappropriation or violation of Intellectual Property Rights of any Person occurring after the date hereof that the Escrow Representative (acting on behalf of the Indemnifying Stockholders) can show, based on a preponderance of the evidence, would not have occurred (a) but for a change made by or at the direction of Parent to any of the Company Products or Future Products or to the Company’s business or development plan, except for changes made to address any problem or issue with respect to any Company Products or Future Products, including those problems and issues identified in Section 2.14(r), or (b) but for the combination of any Company Product or Future Product with other Technology, made by or at the direction of Parent. As of the date hereof, the Company has not received notice from any Person claiming that such operation, any Company Product, Future Product, any Technology used by the Company or any Company Intellectual Property infringes or misappropriates any Intellectual Property Rights of any Person or constitutes unfair competition or trade practices under the laws of any jurisdiction (nor does the Company have Knowledge of any basis for any notice that would have a material adverse effect on the Company, its business or its financial condition). No Company Intellectual Property is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by the Company or may affect the validity or enforceability of any Company Intellectual Property. Notwithstanding anything to the contrary in this Agreement, this Section 2.14(h) contains the only representations or warranties made by the Company with respect to infringement, misappropriation or violation of Intellectual Property Rights of any other Person.

No Infringement by the Company. The operation of products and services used, manufactured, marketed, sold or licensed by the Company and its Subsidiaries, including Company Products and all Technology used in the business of the Company as currently and its Subsidiaries, and the conduct and activities of the Company and its Subsidiaries, do not infringe (directly, contributorily, by inducement or otherwise), violate, misappropriate, dilute or constitute the unauthorized use of, have not infringed (directly, contributorily, by inducement or otherwise), violated, misappropriated, diluted or constituted the unauthorized use of, and when conducted and, with respect to Future Products, as currently proposed by the Company to be conducted, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, delivery, sale Surviving Corporation and licensing out of any Company Product, as each is or has been conducted by or on behalf of the Company, has not and does not infringe or misappropriate and will not infringe or misappropriate when conducted APC in substantially the same manner by Parent and/or the Company following the Closing, will not infringe (directly, contributorily, by inducement or otherwise), violate, misappropriate, dilute or constitute the unauthorized use of any rights owned or controlled by any third party, including any Intellectual Property Rights. No Action has been initiated or is pending, and no notice or other claim, dispute, assertion, allegation or action has been received by the Company or any of its Subsidiaries, alleging that the Company or any of its Subsidiaries (including any employee, contractor, or consultant of the Company or any of its Subsidiaries in its capacity as such) have engaged in any activity or conduct that infringes, violates, misappropriates, dilutes or constitutes the unauthorized use of, or has infringed, violated, misappropriated, diluted or constituted the unauthorized use of, the Intellectual Property Rights of any Personthird party, violate any right of any Person (including any right to privacy notice or publicity) other communication suggesting or constitute unfair competition or trade practices under the laws of any jurisdiction; provided, however, offering that the foregoing representations and warranties solely as to the operation of the business as proposed to be conducted by the Company (but not as such has been or is conducted by the Company), with respect to Future Products (other than Updates) but not Near-Term Future Products or Updates, are made to the Company’s Knowledge; provided, further that the foregoing representations and warranties do not extend to infringement, misappropriation or violation of Intellectual Property Rights of any Person occurring after the date hereof that the Escrow Representative (acting on behalf of the Indemnifying Stockholders) can show, based on a preponderance of the evidence, would not have occurred (a) but for a change made by or at the direction of Parent to any of the Company Products or Future Products or to the Company’s business or development plan, except for changes made to address any problem or issue with respect to any Company Products or Future Products, including those problems and issues identified in Section 2.14(r), or (b) but for the combination of any Company Product or Future Product with other Technology, made by or at the direction of Parent. As of the date hereof, the Company has not received notice from any Person claiming that such operation, any Company Product, Future Product, any Technology used by the Company or any Company Intellectual Property infringes or misappropriates of its Subsidiaries obtain a license to any Intellectual Property Rights Right of any Person or constitutes unfair competition or trade practices under the laws of any jurisdiction (nor does the Company have Knowledge of any a third party, and there is no basis for any notice that would have such Action. Schedule 2.15(d) of the Company Disclosure Schedule accurately identifies (and the Company has provided to APC a material adverse effect on complete and accurate copy of) each letter or other written or electronic communication sent or otherwise delivered by, or received by, the Company regarding any actual, alleged, or suspected infringement or misappropriation of any Intellectual Property Right by the Company, its business or its financial condition). No Company Intellectual Property is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by the Company or may affect the validity or enforceability of any Company Intellectual Property. Notwithstanding anything to the contrary in this Agreement, this Section 2.14(h) contains the only representations or warranties made by the Company with respect to infringement, misappropriation or violation of Intellectual Property Rights of any other Person, including any unsolicited offer by a third party to license such third party’s Intellectual Property Rights, and provides a brief description of the current status of the matter referred to in such communication.

No Infringement by the Company. Neither the Company nor any of its Subsidiaries has ever infringed, misappropriated, violated or otherwise made unlawful use of the Intellectual Property of any other Person. The operation of the business of the Company and each of its Subsidiaries as currently conducted and, with respect to Future Products, or as currently proposed contemplated to be conducted by the Company to be conductedCompany, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, delivery, sale and licensing out of any Company ProductProduct or any Company Technology, as each is or has been conducted by or on behalf of the Company, has not and does not infringe infringe, misappropriate, violate or misappropriate make unlawful use of, and will not infringe or misappropriate when conducted in substantially the same manner by Parent and/or the Company and its Subsidiaries following the ClosingClosing will not infringe, misappropriate, violate or make unlawful use of, any Intellectual Property Rights of any Person, violate any right of any Person (including any right to privacy or publicity) Person, or constitute unfair competition or trade practices under the laws of any jurisdiction; provided, however, that the foregoing representations and warranties solely as to the . The operation of the business of the Company and each of its Subsidiaries as proposed currently contemplated to be conducted by the Company (but not as such has been or is conducted by the Company), with respect to Future Products (other than Updates) but not Near-Term Future Products or Updates, are made to the Company’s Knowledge; provided, further that the foregoing representations and warranties do not extend to infringement, misappropriation or violation of Intellectual Property Rights of any Person occurring after the date hereof that the Escrow Representative (acting on behalf of the Indemnifying Stockholders) can show, based on a preponderance of the evidence, would not have occurred (a) but for a change made by or at the direction of Parent to any of the Company Products or Future Products or to the Company’s business or development plan, except for changes made to address any problem or issue with respect to any Company Products or Future Products, including those problems the design, development, use, import, branding, advertising, promotion, marketing, manufacture, delivery, sale and issues identified in Section 2.14(r), or (b) but for the combination licensing out of any Company Product or Future Product with other Technology, made any Company Technology by or at the direction of Parent. As of the date hereof, the Company and its Subsidiaries as currently contemplated to be conducted by the Company, will not infringe, misappropriate, violate or make unlawful use of, and when conducted as currently contemplated by the Company by Parent and/or the Company and its Subsidiaries following the Closing will not infringe, misappropriate, violate or make unlawful use of, any Intellectual Property of any Person, violate any right of any Person, or constitute unfair competition or trade practices under the laws of any jurisdiction. Neither the Company nor any of its Subsidiaries has not ever received notice from any Person claiming or alleging, and, there is no pending or, to the Company’s Knowledge threatened, Action in which any Person has claimed or alleged, that such operationthe Company, any Subsidiary of the Company, any Company Product, Future Productany Company Technology, any Technology used by the Company or any Company Intellectual Property infringes infringes, misappropriates, violates or misappropriates otherwise makes unlawful use of any Intellectual Property Rights of any Person or constitutes that the Company or any of its Subsidiaries has engaged in unfair competition or trade practices under the laws of any jurisdiction (nor does the Company have Knowledge of any basis for any notice that would have a material adverse effect on the Company, its business such claim or its financial conditionallegation). No Neither the Company nor any of its Subsidiaries has ever sought or obtained an opinion of counsel regarding any possible infringement, misappropriation, violation or unlawful use of another Person’s Intellectual Property is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by the Company or may affect the validity or enforceability of any Company another Person’s Intellectual Property. Notwithstanding anything to the contrary in this Agreement, this Section 2.14(h) contains the only representations or warranties made by the Company with respect to infringement, misappropriation or violation of Intellectual Property Rights of any other Person.

No Infringement by the Company. The operation of (i) To the business of the Company as currently conducted and, with respect to Future Products, as currently proposed by the Company to be conducted, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, delivery, sale and licensing out of any Company Product, as each is or has been conducted by or on behalf best of the Company’s Knowledge, has not neither the conduct of the Company’s businesses as conducted on and does not infringe or misappropriate and will not infringe or misappropriate when conducted in substantially the same manner by Parent and/or the Company following the Closing, any Intellectual Property Rights of any Person, violate any right of any Person (including any right to privacy or publicity) or constitute unfair competition or trade practices under the laws of any jurisdiction; provided, however, that the foregoing representations and warranties solely as prior to the operation of the business Termination Right Lapse Date nor as proposed to be conducted by the Company (but not as such has been or is conducted by the Company)infringe, with respect constitute contributory infringement, inducement to Future Products (other than Updates) but not Near-Term Future Products or Updates, are made to the Company’s Knowledge; provided, further that the foregoing representations and warranties do not extend to infringementinfringe, misappropriation or violation unlawful use of Intellectual Property Proprietary Rights of any Person occurring after the date hereof that the Escrow Representative (acting on behalf of the Indemnifying Stockholders) can show, based on a preponderance of the evidence, would not have occurred (a) but for a change made by or at the direction of Parent to any of Person. Neither the Company Products or Future Products or to the Company’s business or development plan, except for changes made to address any problem or issue with respect to nor any Company Products or Future Products, including those problems and issues identified in Section 2.14(r), or (b) but for the combination of any Company Product or Future Product with other Technology, made by or at the direction of Parent. As of the date hereof, the Company Subsidiary has not received notice from any Person claiming that such operationregarding an asserted or threatened claim, nor to the Company’s Knowledge are there any Company Product, Future Product, any Technology used by facts which could give rise to a claim nor has the Company or any Company Intellectual Property infringes Subsidiary received any notification, that the business of the Company infringes, constitutes contributory infringement, inducement to infringe, misappropriation or misappropriates any Intellectual Property unlawful use of Proprietary Rights of any Person or constitutes unfair competition or trade practices under the laws of any jurisdiction (nor does the Company have Knowledge of any basis for any notice that would have a material adverse effect on the Company, its business or its financial condition)Person. No Company Intellectual Property is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by Person has notified the Company or may any Company Subsidiary in writing that the Company or any Company Subsidiary requires a license to any of Person’s Proprietary Rights. No claim or adversarial action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel has been made, brought or threatened against the Company or any Company Subsidiary, an employee of the Company or any Company Subsidiary, or any other Person identified or required to be identified on Section 2.14 of the Disclosure Schedule (A) involving any Company Proprietary Right or (B) asserting that the Company or any Company Subsidiary, an employee of the Company or any Company Subsidiary or any other Person has breached any Contract affecting or relating to the protection or disclosure of the Product, or otherwise improperly disclosed, acquired or misused a trade secret, that, if adversely determined, could reasonably be expected to materially and adversely affect the validity development, manufacturing, use, distribution or enforceability sale of any Company Intellectual Property. Notwithstanding anything to the contrary in this Agreement, this Section 2.14(h) contains the only representations or warranties made by the Company with respect to infringement, misappropriation or violation of Intellectual Property Rights of any other PersonProduct.

No Infringement by the Company. The operation of (i) To the business of the Company as currently conducted and, with respect to Future Products, as currently proposed by the Company to be conducted, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, delivery, sale and licensing out of any Company Product, as each is or has been conducted by or on behalf best of the Company’s Knowledge, has not neither the conduct of the Company’s businesses as conducted on and does not infringe or misappropriate and will not infringe or misappropriate when conducted in substantially the same manner by Parent and/or the Company following the Closing, any Intellectual Property Rights of any Person, violate any right of any Person (including any right to privacy or publicity) or constitute unfair competition or trade practices under the laws of any jurisdiction; provided, however, that the foregoing representations and warranties solely as prior to the operation of the business Termination Right Lapse Date nor as proposed to be conducted by the Company (but not as such infringe, constitute contributory infringement, inducement to infringe, misappropriation or unlawful use of Proprietary Rights of any Person. Neither the Company nor any Company Subsidiary has been received [*] Confidential treatment requested. 50 CONFIDENTIAL TREATMENT REQUESTED notice from any Person regarding an asserted or is conducted by the Company)threatened claim, with respect to Future Products (other than Updates) but not Near-Term Future Products or Updates, are made nor to the Company’s Knowledge; provided, further that the foregoing representations and warranties do not extend Knowledge are there any facts which could give rise to infringement, misappropriation or violation of Intellectual Property Rights of any Person occurring after the date hereof that the Escrow Representative (acting on behalf of the Indemnifying Stockholders) can show, based on a preponderance of the evidence, would not have occurred (a) but for a change made by or at the direction of Parent to any of the Company Products or Future Products or to the Company’s business or development plan, except for changes made to address any problem or issue with respect to any Company Products or Future Products, including those problems and issues identified in Section 2.14(r), or (b) but for the combination of any Company Product or Future Product with other Technology, made by or at the direction of Parent. As of the date hereof, the Company claim nor has not received notice from any Person claiming that such operation, any Company Product, Future Product, any Technology used by the Company or any Company Intellectual Property infringes Subsidiary received any notification, that the business of the Company infringes, constitutes contributory infringement, inducement to infringe, misappropriation or misappropriates any Intellectual Property unlawful use of Proprietary Rights of any Person or constitutes unfair competition or trade practices under the laws of any jurisdiction (nor does the Company have Knowledge of any basis for any notice that would have a material adverse effect on the Company, its business or its financial condition)Person. No Company Intellectual Property is subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by Person has notified the Company or may any Company Subsidiary in writing that the Company or any Company Subsidiary requires a license to any of Person’s Proprietary Rights. No claim or adversarial action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel has been made, brought or threatened against the Company or any Company Subsidiary, an employee of the Company or any Company Subsidiary, or any other Person identified or required to be identified on Section 2.14 of the Disclosure Schedule (A) involving any Company Proprietary Right or (B) asserting that the Company or any Company Subsidiary, an employee of the Company or any Company Subsidiary or any other Person has breached any Contract affecting or relating to the protection or disclosure of the Product, or otherwise improperly disclosed, acquired or misused a trade secret, that, if adversely determined, could reasonably be expected to materially and adversely affect the validity development, manufacturing, use, distribution or enforceability sale of any Company Intellectual Property. Notwithstanding anything to the contrary in this Agreement, this Section 2.14(h) contains the only representations or warranties made by the Company with respect to infringement, misappropriation or violation of Intellectual Property Rights of any other PersonProduct.