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 the business of the Company and its Subsidiaries as it is currently conducted and, with respect to Future Products, as currently proposed 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 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 Closingmisappropriate, 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 Laws of any jurisdiction, and will not infringe or misappropriate when conducted in substantially the same manner by Parent and/or the Surviving Corporation following the Closing; provided, however, that the foregoing representations and warranties solely as representation regarding following the Closing does not apply to infringement or misappropriation caused by changes made by Parent and/or the Surviving Corporation 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 its Subsidiaries 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 when there would have been no infringement or Future Products, including those problems and issues identified in Section 2.14(r), or (b) misappropriation but for the combination of any Company Product or Future Product with other Technology, made by or at the direction of Parentsuch changes. As of the date hereof, Neither the Company nor any of its Subsidiaries has not received written notice from any Person claiming that such operation, operation or any Company Product, Future Product, or any Technology used by the Company or any Company Intellectual Property Company, infringes or misappropriates any Intellectual Property Rights of any Person or constitutes unfair competition or trade practices under the laws 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 conditiontherefor). No Company Product or Company Intellectual Property is subject to any proceeding or outstanding decree, order, judgment Order or settlement agreement or stipulation that restricts in any manner the use, provision, transfer, assignment or licensing thereof by the Company or any of its Subsidiaries or may affect the validity validity, use or enforceability of any such Company Product or Company Intellectual Property. Notwithstanding anything For the purposes of this Section 2.14(j), “Company Product” shall be as defined above but without regard to the contrary three-year limitation 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 Persondefinition.

No Infringement by the Company. The operation of the business of the Company as it is currently conducted and, with respect and as it is proposed to Future Products, as currently proposed 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 Product, as each is or has been conducted by or on behalf of the Company, has not and does not infringe (whether directly, indirectly, secondarily, contributorily, vicariously, by inducement, or under any other theory of infringement) or misappropriate and will not infringe or misappropriate when conducted in substantially the same manner by Parent and/or the Company Interim Surviving Corporation or Final Surviving Entity following the Closing, any Intellectual Property Rights of any Person, violate any right of any Person (including any right to privacy or publicity) publicity or similar right), 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 . None 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 its Subsidiaries has not received notice from any Person claiming that such operationoperation or any act, 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 conditiontherefor). No Company Product or 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 use of, or the ability to use, any such Company Product or the validity, use or enforceability of any such Company Intellectual Property. Notwithstanding anything to the contrary in this AgreementThe Company does not, this Section 2.14(h) contains the only representations without proper authorization and all necessary rights, possess or warranties made by the Company with respect to infringementhave within its custody or control any Technology, misappropriation including without limitation any customer lists, marketing materials, technical information or violation of Intellectual Property Rights of any other Persondata.

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.