Patents, Trademarks and Similar Rights. (i) Set forth on Schedule 2(h) of the Disclosure Schedule is a true and complete list of the patents, patent applications, trademarks (registered or unregistered) and service marks (and any applications or registrations therefor), trade names, corporate names, copyrights, copyright registrations and other intellectual property that currently exists in written form owned or filed by, or licensed to, the Company or the Subsidiary or used in the conduct of the Company's or the Subsidiary's business as presently conducted ("Intellectual Property"). With respect to registered trademarks, Schedule 2(h) of the Disclosure Schedule sets forth a list of all jurisdictions in which such trademarks are registered or applied for and all registration and application numbers. To the Company's Knowledge, the Company has all rights to Intellectual Property as are used or are necessary in connection with the businesses of the Company and the Subsidiary as presently conducted, and except as set forth on Schedule 2(h) of the Disclosure Schedule, the Company owns, or has the right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of and sublicense, without payment to any other person or entity, all Intellectual Property free and clear of all Claims whatsoever. The consummation of the transactions contemplated hereby will not conflict with, alter or impair any such right. (ii) Neither the Company nor the Subsidiary has granted any options, licenses or agreements of any kind relating to Intellectual Property or the marketing or distribution thereof. Neither the Company nor the Subsidiary is bound by or a party to any options, licenses or agreements of any kind relating to the intellectual property of any other person or entity, except as set forth in Schedule 2.1(d) of the Disclosure Schedule. The conduct of the business of the Company and of the Subsidiary as presently conducted does not, to the Company's Knowledge, violate, conflict with or infringe the intellectual property of any other person or entity. No claims are pending, or to the Company's Knowledge, threatened, against the Company or the Subsidiary by any person or entity with respect to the ownership, validity, enforceability, effectiveness or use of any Intellectual Property and, during the past three years, neither the Company nor the Subsidiary has received any communications alleging that the Company has violated any rights relating to intellectual property of any person or entity.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Imprimis Investors LLC), Securities Purchase Agreement (Industrial Imaging Corp)
Patents, Trademarks and Similar Rights. (i) Set forth on Schedule 2(h) of the Disclosure Schedule is a true and complete list of the patents, patent applications, trademarks (registered or unregistered) and service marks (and any applications or registrations therefor), trade names, corporate names, copyrights, copyright registrations and other intellectual property that currently exists in written form owned or filed by, or licensed to, the Company or the Subsidiary or used in the conduct of the Company's or the Subsidiary's business as presently conducted ("Intellectual Property"). With respect to registered trademarks, Schedule 2(hSection 2.1(k) of the Disclosure Schedule sets forth a list of all jurisdictions in Intellectual Property (as defined below) necessary for the current operation of the business of Seller and that is owned by Seller, or licensed by a third Person to Seller, or licensed by the Seller to a third Person (other than another member of the GM Group), together with a list of any agreements between Seller and a third Person (other than another member of the GM Group) pursuant to which such trademarks are registered or applied for and all registration and application numbers. To the Company's Knowledge, the Company has all rights to licensed Intellectual Property as are used or are necessary in connection with the businesses of the Company and the Subsidiary as presently conducted, and except is licensed.
(ii) Except as set forth on Schedule 2(hin Section 2.1(k) of the Disclosure Schedule, no third Person Software (other than commercial off-the-shelf software) is utilized by Seller.
(iii) No open source or similar Software is, to the Company ownsKnowledge of the Seller Parties, utilized by Seller.
(iv) In the six (6)-year period prior to the date of this Agreement, none of Stockholders or the managers or officers of Seller has received any written claim relating to an improper use or disclosure of, or a breach in the security of, any proprietary information of a third Person.
(v) To the Knowledge of the Seller Parties, (A) no Person has infringed upon, misappropriated or otherwise engaged in the right unauthorized use of the Intellectual Property of Seller; and (B) no Person is currently infringing the Intellectual Property rights of Seller.
(vi) To the Knowledge of the Seller Parties, none of the activities of the employees of Seller in connection with their employment by Seller is in material violation of any agreement or arrangement that any such employees have with former employers. Each employee of Seller that is responsible for the creation or development of material Intellectual Property of Seller has executed an agreement with Seller that assigns to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of and sublicense, without payment to any other person or entity, Seller all Intellectual Property developed by the employee while an employee of Seller, within the scope of his or her employment with Seller, and using the resources of Seller.
(vii) No agreement pursuant to which Seller holds, uses or licenses Intellectual Property contains anti-assignment or other provisions that would, as a result of the Acquisition: (a) cause the termination of such agreement or allow any other party to such agreement to terminate the agreement or (b) effect any change in such agreement which is materially adverse to Seller.
(viii) Seller has not agreed to indemnify any Person for or against any infringement or misappropriation of any Intellectual Property.
(ix) To the Knowledge of the Seller Parties, Seller has not infringed upon or misappropriated any Intellectual Property of a third Person. Seller has not received any written charge, written complaint, written claim, written demand or written notice alleging any such infringement, misappropriation or violation regarding any third Person Intellectual Property. To the Knowledge of the Seller Parties, no product or service sold by Seller violates or infringes any Intellectual Property right owned or held by any third Person.
(x) Seller has complied in all material respects with all applicable legal requirements pertaining to information privacy and security, except for any such non-compliance with would not cause a Material Adverse Effect on Seller. To the Knowledge of the Seller Parties: (A) except for disclosures to third Persons who are bound by confidentiality agreements, Seller has not caused any unauthorized disclosure of any third Person material proprietary information or material confidential information in the possession, custody or control of Seller, and (B) no material breach of Seller’s security procedures has occurred wherein material proprietary information or material confidential information has been disclosed to a third Person.
(xi) Except as identified in Section 2.1(k) of the Disclosure Schedule, to the Knowledge of the Seller Parties: (a) each license, sublicense or agreement, pursuant to which Seller has granted rights to a third Person pertaining to Seller’s Intellectual Property, or pursuant to which Seller has been granted rights to third Person Intellectual Property, is legal, valid, binding, enforceable, and in full force and effect in all material respects, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity, regardless of whether enforcement is sought in a proceeding at law or in equity; (b) no party to such license, sublicense or agreement is in material breach or default, and no event has occurred which with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration thereunder; and (c) no party to such license, sublicense or agreement has repudiated any material provision thereof.
(xii) To the Knowledge of the Seller Parties, the products sold by or for Seller under any patents include patent markings and notices in compliance, in all material respects, with all applicable United States patent marking laws and regulations.
(xiii) Neither the Stockholders nor any Related Persons of the Seller Parties own any Intellectual Property necessary for the conduct of the business currently conducted by Seller.
(xiv) All Intellectual Property owned by Seller is free and clear of all Claims whatsoever. The consummation of the transactions contemplated hereby will not conflict with, alter or impair any such rightLiens (other than Permitted Encumbrances) and restrictions.
(ii) Neither the Company nor the Subsidiary has granted any options, licenses or agreements of any kind relating to Intellectual Property or the marketing or distribution thereof. Neither the Company nor the Subsidiary is bound by or a party to any options, licenses or agreements of any kind relating to the intellectual property of any other person or entity, except as set forth in Schedule 2.1(d) of the Disclosure Schedule. The conduct of the business of the Company and of the Subsidiary as presently conducted does not, to the Company's Knowledge, violate, conflict with or infringe the intellectual property of any other person or entity. No claims are pending, or to the Company's Knowledge, threatened, against the Company or the Subsidiary by any person or entity with respect to the ownership, validity, enforceability, effectiveness or use of any Intellectual Property and, during the past three years, neither the Company nor the Subsidiary has received any communications alleging that the Company has violated any rights relating to intellectual property of any person or entity.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mine Safety Appliances Co)
Patents, Trademarks and Similar Rights. (ia) Set forth on Schedule 2(h) of the Disclosure Schedule The Company owns or is a true and complete list of the patents, patent applications, trademarks (registered or unregistered) and service marks (and any applications or registrations therefor), trade names, corporate names, copyrights, copyright registrations and other intellectual property that currently exists in written form owned or filed by, or properly licensed to, the Company or the Subsidiary or to use all Intellectual Property used in the conduct of the business of the Company as of the date of this Agreement. Except as set forth on Section 4.23(a) of the Disclosure Schedule, the Company does not have any Patent Rights, Trademark Rights, or Copyrights that are either the subject of a pending application or are issued or registered. Section 4.23(a) of the Disclosure Schedule sets forth a true and complete list and summary description of all (i) registered Trademark Rights and pending applications for the same in which the Company has an ownership interest (including a security interest), (ii) Internet domain names in which the Company has an ownership interest (including a security interest), (iii) Patent Rights comprising an issued patent or pending application (whether regular, provisional, or otherwise) in which the Company has an ownership interest (including a security interest), (iv) registered Copyrights and pending applications for the same in which the Company has an ownership interest (including a security interest), and (v) material written licenses to which the Company is a party which grant licenses to Intellectual Property (including Software) of any third Person (the “Intellectual Property Licenses”).
(b) All officers and employees of the Company who have created any Intellectual Property for the Company have executed written contracts that irrevocably transfer all of their rights, title and ownership in and to any such Intellectual Property to the Company's or .
(c) The Company has taken reasonable measures to protect the Subsidiary's confidential and proprietary nature of the Trade Secrets and all other confidential information material to the business as presently conducted ("Intellectual Property")of the Company. With respect to registered trademarks, Schedule 2(hSection 4.23(c) of the Disclosure Schedule sets forth a list of all jurisdictions in written contracts with each current agent, consultant, distributor or licensee of the Company (“Confidentiality Contract”) pursuant to which such trademarks agent, consultant, distributor or licensee acknowledges and agrees that (i) the Trade Secrets are registered and shall remain the sole and exclusive property of, and may be confidential to, the Company, and (ii) the Trade Secrets are not to be used or applied for disclosed to any Person other than as specifically authorized by the Company or required by Law. Each of the Confidentiality Contracts and all registration any employee contracts relating to the Intellectual Property owned by the Company was and application numbersis in full force and effect, and constitutes the legal, valid, and binding obligation of the Company, and each other Person who is a party thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization and similar laws affecting creditors generally and by the availability of equitable remedies. To the Company's ’s Knowledge, no Person which is a party to any Contract with the Company has all concerning the confidentiality of the Trade Secrets is in violation of, or in default under, any term or provision of such Contract which relates to the Trade Secrets.
(d) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not have any effect on the Company’s Intellectual Property rights contained in any material Contracts related to Intellectual Property.
(e) The Company possesses all right, title and interest in and to all Intellectual Property as are used in which the Company purports to have an ownership interest or are necessary in connection which has been created for the Company by its officers, directors, employees, consultants, agents and other individuals associated with the businesses Company (the “Owned Intellectual Property”) free and clear of any Lien or other ownership interest of any third Person (other than the Company and the Subsidiary as presently conducted, and except Permitted Liens). Other than as set forth on Schedule 2(hSection 4.23(e) of the Disclosure Schedule, the Company ownshas not granted to any Person or obligated itself to grant to any Person any license, option, or has other right in or with respect to any of the right to useOwned Intellectual Property, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of and sublicense, without whether or not requiring payment to any other person or entity, all Intellectual Property free and clear of all Claims whatsoeverthe Company. The consummation of the transactions contemplated hereby will not conflict with, alter or impair any such right.
(ii) Neither the Company nor the Subsidiary has granted any options, licenses or agreements of any kind relating to Intellectual Property or the marketing or distribution thereof. Neither the Company nor the Subsidiary is bound by or a party to any options, licenses or agreements of any kind relating to the intellectual property of any other person or entity, except Except as set forth in Schedule 2.1(don Section 4.23(e) of the Disclosure Schedule, no Person has either asserted any rights in or offered to grant the Company a license or any other right of use with respect to the Owned Intellectual Property. The Except as set forth on Section 4.23(e) of the Disclosure Schedule, the Company does not have any obligation to compensate any Person for any development, license, use, sale, distribution or modification of any of the Owned Intellectual Property. None of the Owned Intellectual Property was developed as part of the performance of any obligation for any third Person which would require the taking of any action, whether or not actually taken, in order for all rights to the Owned Intellectual Property to become vested in, or retained by the Company.
(f) Other than the Owned Intellectual Property and the Intellectual Property licensed to the Company (the “Licensed Intellectual Property”), there is no other Intellectual Property currently used or necessary for use for the conduct of the business of the Company and of as currently conducted.
(g) Neither the Subsidiary as presently conducted does notCompany nor, to the Company's ’s Knowledge, violateany other party, conflict with is in breach of or infringe default under any Intellectual Property license or any other Contract or legal requirement relating to the intellectual property Owned Intellectual Property or any Licensed Intellectual Property. Each license to Intellectual Property to which the Company is a party is valid and in full force and effect.
(h) The development, license, use, sale, distribution, modification, and other exploitation of the Owned Intellectual Property and the Licensed Intellectual Property have not infringed on or otherwise violated the rights of any other person Person or entity. No claims are constituted an unlawful disclosure, use, or misappropriation of the right or rights of any other Person.
(i) Except as set forth on Section 4.23(i) of the Disclosure Schedule, there is (i) no suit, action, complaint, Legal Proceeding, opposition, petition to cancel, interference, re-examination or audit pending, or threatened, with respect to, and (ii) no outstanding Order concerning, any of the following: (A) the Owned Intellectual Property and the Licensed Intellectual Property, or (B) any moral rights or rights of publicity of the Company or any third party or (C) any right of the Company to develop, license, use, sell, distribute or modify the Owned Intellectual Property and the Licensed Intellectual Property.
(j) The Company has not agreed to indemnify any person against any charge of infringement or other violation with respect to any Intellectual Property, other than, as described on Section 4.23(j) of the Disclosure Schedule, customers of the Company.
(k) The Company has not (a) infringed, misappropriated, otherwise violated, or (b) contributed to the infringement, misappropriation or other violation by others, or (c) induced infringement, misappropriation or other violation by others of the Intellectual Property rights of a third Person. Except as set forth on Section 4.23(k) of the Disclosure Schedule, the Company has not received any assertion, complaint, demand or any notice whatsoever alleging any such infringement, misappropriation or other violation.
(l) Except as set forth on Section 4.23(l) of the Disclosure Schedule, to the Company's ’s Knowledge, threatenedno third party is infringing upon, against misappropriating, or otherwise violating rights to the Owned Intellectual Property.
(m) Except as set forth on Section 4.23(m) of the Disclosure Schedule, no complaint, allegation, charge or any assertion whatsoever that any Owned Intellectual Property is invalid, unenforceable, incomplete, or defective in any other way, has been made by the Company, any representative of the Company including any officer, employee, consultant, agent or attorney, or any third Person.
(n) To the Subsidiary Company’s Knowledge, there are no patents, patent applications, inventions, improved procedures or methods of manufacture that would reasonably be expected to have a Company Material Adverse Effect on the validity or enforceability of the Owned Intellectual Property.
(o) The Company has the right, which is non-terminable and not subject to expiration or revocation, to develop, license, control, regulate the use of, or otherwise exploit the Owned Intellectual Property and the Licensed Intellectual Property without any valid legal or equitable claim by, or payment or other obligation owing to, or consent from, any Person.
(p) All Copyrights used in the business of the Company, other than Copyrights constituting Licensed Intellectual Property evidenced by a written license, consist exclusively of (i) “works made for hire” as that term is used in Title 17 of the United States Code and are owned by the Company and (ii) works developed by independent contractors or consultants engaged by the Company which have assigned to the Company their entire right, title and interest in and to the work or works produced, pursuant to a valid and enforceable written Contract. The Intellectual Property used in the business of the Company, other than Licensed Intellectual property evidenced by a written license, does not include (i) any person Intellectual Property in which any Person other than the Company has or entity may acquire any right of ownership, control or compensation, or (ii) any Invention, Copyrights, Trade Secrets or Patent Rights made by or previously owned by (A) any employee of the Company at any time other than during his employment, (B) any independent contractor or consultant engaged by the Company who is or was not subject to a Contract requiring assignment of all Intellectual Property to the Company. None of the Intellectual Property used in the business of the Company, other than Licensed Intellectual property evidenced by a written license, is the product of a joint invention or authorship where at least one of the inventors or authors was not an employee of the Company and was not otherwise obligated by a Contract to assign all of his or her rights to the Company other than as set forth on Section 4.23(p) of the Disclosure Schedule.
(q) To the Company’s Knowledge, there is no Internet domain name registered to a third Person that is confusingly similar to any Trademark Rights of the Company. The Company has not adopted an Internet domain name confusingly similar to any Trademark Rights of any third Person.
(r) To the Company’s Knowledge, there is no Internet domain name registered to a third Person that disparages, criticizes or is derogatory in any way towards the Company. To the Company’s Knowledge, there is no World Wide Web site operated by a third Person that disparages, criticizes or is derogatory in any way towards the Company. The Company does not have an ownership interest in, a license to, or control over an Internet domain name that has been registered and that disparages, criticizes or is derogatory in any way towards any third Person. The Company does not operate or control, either directly or indirectly, any World Wide Web site that disparages, criticizes, or is derogatory in any way towards a third Person.
(s) To the Company’s Knowledge, the Company does not operate or control, either directly or indirectly, any World Wide Web site that uses any Trademark Rights of any third Person, or any confusingly similar variation thereof, in any part of the World Wide Web site, including in metatags or in hidden text. To the Company’s Knowledge, there is no World Wide Web site of any third Person that, without authorization, includes any Trademark Rights of the Company in any part of the World Wide Web site, including in metatags or in hidden text.
(t) For purposes of this paragraph, the term “framing” refers to operating a World Wide Web site that combines data from the World Wide Web site with data from another World Wide Web site operated by a third Person, without authorization. For purposes of this paragraph, the term “deep linking” refers to the operation of a World Wide Web site that obtains data from another World Wide Web site operated by a third Person, without authorization, while bypassing the home page of the World Wide Web site operated by the third Person. The Company does not operate or control, either directly or indirectly, any World Wide Web site that employs framing or deep linking. To the Company’s Knowledge, there is no World Wide Web site of any third Person that employs framing or deep linking with respect to any World Wide Web site owned or controlled, either directly or indirectly, by the ownershipCompany.
(u) Except as disclosed in Section 4.23(u) of the Disclosure Schedule, validitythe Company does not operate or control, enforceabilityeither directly or indirectly, effectiveness any World Wide Web site that contains hyperlinks to any World Wide Web site owned or use operated by any third Person without having to obtain proper authorization for such hyperlinks. To the Company’s Knowledge, there is no World Wide Web site of any Intellectual Property andthird Person that, during without authorization, includes any hyperlinks to any World Wide Web site owned or controlled, either directly or indirectly, by the past three yearsCompany.
(v) Except as disclosed in Section 4.23(v) of the Disclosure Schedule, neither the Company nor the Subsidiary has received any communications alleging that the Company has violated not contracted with any rights relating third Person to intellectual property provide advertising through any World Wide Web site that is triggered by data comprising any trademark, service xxxx, trade name, company name, business name, or confusingly similar variations thereof of any person or entitythird Person. To the Company’s Knowledge, there is no third Person that provides advertising not authorized by the Company through a World Wide Web site that is triggered by data comprising any Trademark Rights of the Company.
Appears in 1 contract
Samples: Merger Agreement (Electronic Data Systems Corp /De/)
Patents, Trademarks and Similar Rights. (i) Set forth on Schedule 2(h) 3M of the Disclosure Schedule is a true and complete list of the patents, patent applications, trademarks (registered or unregistered) and service marks (and any applications or registrations therefor), trade names, corporate names, copyrights, copyright registrations and other intellectual property that currently exists in written form owned or filed by, or licensed to, the Company or the Subsidiary or used in the conduct of the Company's or the Subsidiary's business as presently conducted ("Intellectual Property"). With respect to registered trademarks, Schedule 2(h) 3M of the Disclosure Schedule sets forth a list of all jurisdictions in which such trademarks are registered or applied for and all registration and application numbers. To the Company's Knowledge, the Company has all rights to Intellectual Property as are used or are necessary in connection with the businesses of the Company and the Subsidiary as presently conducted, and except as set forth on Schedule 2(h) of the Disclosure Schedule, the Company owns, or has the right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of and sublicense, without payment to any other person or entity, all Intellectual Property free and clear of all Claims whatsoever. The consummation of the transactions contemplated hereby will not conflict with, alter or impair any such right.
(ii) Neither the Company nor the Subsidiary has granted any options, licenses or agreements of any kind relating to Intellectual Property or the marketing or distribution thereof. Neither the Company nor the Subsidiary is bound by or a party to any options, licenses or agreements of any kind relating to the intellectual property of any other person or entity, except as set forth in Schedule 2.1(d) of the Disclosure Schedule. The conduct of the business of the Company and of the Subsidiary as presently conducted does not, to the Company's Knowledge, violate, conflict with or infringe the intellectual property of any other person or entity. No claims are pending, or to the Company's Knowledge, threatened, against the Company or the Subsidiary by any person or entity with respect to the ownership, validity, enforceability, effectiveness or use of any Intellectual Property and, during the past three years, neither the Company nor the Subsidiary has received any communications alleging that the Company has violated any rights relating to intellectual property of any person or entity.
Appears in 1 contract
Patents, Trademarks and Similar Rights. (i) Set Schedule 2.1(h)(i) sets forth on Schedule 2(h) of the Disclosure Schedule is a true and complete list of the any and all patents, patent applications, trademarks (registered or unregistered) and service marks (and any applications or registrations therefor), trade names, corporate namesservice marks, copyrights, copyright registrations domain names and other intellectual property that currently exists in written form owned or applications therefor owned, used, filed by, by or licensed to, to either Seller Party or any of its Affiliates with respect to the Company or the Subsidiary or used in the conduct of the Company's or the Subsidiary's business as presently conducted ("Intellectual Property")Business. With respect to registered trademarks, Schedule 2(h2.1(h)(i) of the Disclosure Schedule sets forth a list of all jurisdictions in which such trademarks (if any) are registered or applied for and all registration and application numbers. To With respect to patents, Schedule 2.1(h)(i) sets forth a list of all jurisdictions in which such patents have been granted or applied for and all registration and application numbers. The Seller Parties and the Company's KnowledgeOther Seller Parties own or validly license all patents, trademarks, service marks, trade names, domain names and copyrights, in each case registered or unregistered, inventions, technology, industrial design, software, know-how, trade secrets, Personally-Identifiable Data (as defined below) and other intellectual property rights (collectively, the Company has "Intellectual Property") (provided, however, that the Intellectual Property does not include any technology, industrial design, software, know-how or trade secrets used principally or exclusively by Keystone to perform its obligations under the Services Agreement or that is provided or made available to the Purchaser solely under the Services Agreement) used in the Business as presently conducted or proposed to be conducted, with no infringement of or conflict with any rights of others. The Seller Parties and the Other Seller Parties are, and on the Closing Date the Purchaser will be, the sole and exclusive owner of or valid licensee of all rights to the Intellectual Property, free and clear of all Liens. Each of the aforesaid elements of the Intellectual Property as are used or are necessary in connection with the businesses of the Company is valid, subsisting and the Subsidiary as presently conducted, and except enforceable. Except as set forth on Schedule 2(h) of the Disclosure Schedule2.1(h)(i), the Company ownsSeller has, or has and on the Closing Date the Purchaser will have, the right to useuse the same without the payment of any license, executefee, reproduceroyalty or similar charge. Except as set forth on Schedule 2.1(h)(i), display, perform, modify, enhance, distribute, prepare derivative works none of and sublicense, without payment the Seller Parties or any of their Affiliates has granted to any third party any license or other person or entityright to any of the Intellectual Property. Except as set forth on Schedule 2.1(h)(i), all there is no claim pending or, to the knowledge of the Seller Parties, threatened which relates to any of the Intellectual Property free and clear there is no basis on which any such claim could be brought. Except as set forth on Schedule 2.1(h)(i), no Seller Party or any of all Claims whatsoever. The consummation its Affiliates has received any notice that the operations of the transactions contemplated hereby will not conflict withBusiness or the practice of any of the Intellectual Property infringes upon or conflicts with any patent, alter trademark, trade name, copyright or impair other proprietary right of a third party and, to the knowledge of the Seller Parties, there is no basis on which any such rightclaim could be brought.
(ii) Neither the Company nor the Subsidiary has granted any optionsExcept as set forth on Schedule 2.1(h)(ii), licenses or agreements of any kind relating to Intellectual Property or the marketing or distribution thereof. Neither the Company nor the Subsidiary is bound by or a party to any options, licenses or agreements of any kind relating to the intellectual property knowledge of the Seller Parties, there is no infringement or improper use by any other person or entitythird party of the Intellectual Property. The Seller Parties and the Other Seller Parties have taken all action necessary to prosecute all of the such parties' existing applications and to maintain all of such parties' registrations listed on Schedule 2.1(h)(i) (if any) in full force and effect in the jurisdictions named therein and, except as set forth in Schedule 2.1(h)(ii), such parties have not taken or failed to take any action which would have the effect of waiving any rights to the Intellectual Property. Except as set forth on Schedule 2.1(h)(ii) and assuming the consents or waivers required under the contracts listed on Schedule 2.1(d) are received prior to Closing, no contract, agreement or understanding with any party exists that would impede or prevent the assignment to the Purchaser of all right, title and interest of the Disclosure Schedule. Seller Parties and the Other Seller Parties in and to the Intellectual Property.
(iii) The conduct Seller Parties and the Other Seller Parties have taken all reasonable measures to protect and preserve the security, confidentiality, value and ownership of the business of the Company Intellectual Property, including trade secrets and of the Subsidiary as presently conducted does notother confidential information and, to the Company's Knowledgeknowledge of the Seller Parties, violateto obtain authorization, conflict with through privacy policies, notices, consents or infringe otherwise, to use Personally-Identifiable Data in the Business as conducted. Except as set forth in Schedule 2.1(h)(iii), neither Seller Party nor any of its Affiliates has any contract, agreement, understanding or policy, including without limitation any privacy policy, that could limit the use of the Personally-Identifiable Data by the Purchaser after the Closing. All employees and consultants of the Seller Parties and the Other Seller Parties involved in the design, review, evaluation or development of products or intellectual property rights are subject to such party's Corporate Code of any other person or entityConduct, a copy of which is set forth on Schedule 2.1(h)(iii), which is sufficient to protect the confidentiality and value of the Intellectual Property. No claims are pendingExcept as set forth on Schedule 2.1(h)(iii), or to the Company's Knowledgeknowledge of the Seller Parties, threatened, against all trade secrets and other confidential information of the Company Seller Parties and the Other Seller Parties relating to the Business or the Subsidiary by any person Acquired Assets are presently valid and protectable and are not part of the public domain or entity with respect knowledge, nor, to the ownershipknowledge of the Seller Parties, validityhave they been used, enforceability, effectiveness divulged or use of any Intellectual Property and, during appropriated for the past three years, neither the Company nor the Subsidiary has received any communications alleging that the Company has violated any rights relating to intellectual property benefit of any person other than the Seller Parties or entitythe Other Seller Parties to the detriment of the Business; provided, however, that the Seller's customer lists have from time to time been rented, provided to certain third parties, and provided to Affiliates in the ordinary course of business. The Personally-Identifiable Data contains, in all material respects, a true, correct and complete list of all of the customers who have actually purchased merchandise from the Business since September, 1995.
(iv) For the purposes of this Agreement, "Personally- Identifiable Data" means the names, addresses, email addresses, telephone numbers, fax numbers of any natural persons, or any other data likely to substantially identify any particular natural persons, together with any other information about a natural person which is combined with or linked to any of the foregoing information, including but not limited to customer lists, mailing lists, telemarketing lists, email telemarketing lists, customer or prospective customer databases, credit reports, data regarding purchases of identified customers, and databases or records of website usage by users who are identified by any of the foregoing information.
Appears in 1 contract
Patents, Trademarks and Similar Rights. (i) Set forth on Schedule 2(h3(m) of the Disclosure Schedule is a true and complete list of the patents, patent applications, trademarks (registered or unregistered) and service marks (and any applications or registrations therefor), trade names, corporate names, copyrights, copyright registrations and other intellectual property that currently exists in written form owned or filed by, or licensed to, the Company or the Subsidiary or used in the conduct of the Company's or the Subsidiary's business as presently conducted ("Intellectual Property"). With respect to registered trademarks, Schedule 2(h3(m) of the Disclosure Schedule sets forth a list of all jurisdictions in which such trademarks are registered or applied for and all registration and application numbers. To the Company's Knowledge, the Company has all rights to Intellectual Property as are used or are necessary in connection with the businesses of the Company and the Subsidiary as presently conducted, and except as set forth on Schedule 2(h) of the Disclosure Schedule, the Company owns, or has the right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of and sublicense, without payment to any other person or entity, all Intellectual Property free and clear of all Claims whatsoever. The consummation of the transactions contemplated hereby will not conflict with, alter or impair any such right.
(ii) Neither the Company nor the Subsidiary has granted any options, licenses or agreements of any kind relating to Intellectual Property or the marketing or distribution thereof. Neither the Company nor the Subsidiary is bound by or a party to any options, licenses or agreements of any kind relating to the intellectual property of any other person or entity, except as set forth in Schedule 2.1(d) of the Disclosure Schedule. The conduct of the business of the Company and of the Subsidiary as presently conducted does not, to the Company's Knowledge, violate, conflict with or infringe the intellectual property of any other person or entity. No claims are pending, or to the Company's Knowledge, threatened, against the Company or the Subsidiary by any person or entity with respect to the ownership, validity, enforceability, effectiveness or use of any Intellectual Property and, during the past three years, neither the Company nor the Subsidiary has received any communications alleging that the Company has violated any rights relating to intellectual property of any person or entity.
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