Patents, Trademarks. (a) DigitalFacades has a valid license to use each copy of mass-market third-party software used by it. Set forth on Schedule 2.17 (a) is a true and complete list of all material inventions, patents, trademarks, trade names, brand names, copyrights, and Software Products (as defined in paragraph (b) of this Section 2.17), (collectively, the "Listed Intellectual Property") of any kind now used or reasonably anticipated to be used in the business of DigitalFacades except the mass-market third-party software described in the first sentence of this Section 2.17. Schedule 2.17(b) contains a complete list of all licenses or agreements which relate to the Listed Intellectual Property (the "Intellectual Property Licenses"); such list indicates the specific Listed Intellectual Property affected by each such Intellectual Property License. Except as set forth on Schedules 2.17(a) or Schedule 2.17(b), neither DigitalFacades' operations nor any Listed Intellectual Property owned by DigitalFacades or to the actual knowledge of DigitalFacades or the Stockholders, any Intellectual Property License would infringe upon any validly issued or to the knowledge of DigitalFacades, any pending trademark, trade name, service xxxx, copyright or, any validly issued patent or other right of any other Person, nor, to the actual knowledge of DigitalFacades and the Stockholders, is there any infringement by any other Person of any of the Listed Intellectual Property or of the intellectual property to which the Intellectual Property Licenses relate. Except as specifically set forth on Schedule 2.17(a) or 2.17(b), consummation of the transactions contemplated hereby and by the Operative Agreements will not alter or impair DigitalFacades' rights to any of the Listed Intellectual Property or under any Intellectual Property License. The manner in which DigitalFacades has manufactured, packaged, shipped, advertised, labeled and sold its products complies with all applicable laws and regulations pertaining thereto, the failure to comply with which would have a material adverse effect upon the business, business prospects, assets, operations or condition (financial or other) of DigitalFacades. (b) Except as specifically set forth on Schedule 2.17(a) or Schedule 2.17(b), DigitalFacades is the sole and exclusive owner or licensee of: (i) the Listed Intellectual Property, the Intellectual Property Licenses and the technology, know-how and processes now used by DigitalFacades, or used in connection with any product now being manufactured and sold by DigitalFacades, in the manner that such product is now being manufactured and sold; and (ii) all rights, title and interest of whatever kind or nature throughout the world in and to the fully or partially developed computer software products listed on Schedule 2.17(a) or Schedule 2.17(b), with all modifications, enhancements and additions thereto, including, without limitation, all rights in and to all versions thereof and all source code, object code, manuals and other documentation and related materials thereof (collectively, the "Software Products"). Without limiting the generality of the above, the Software Products shall also include all of DigitalFacades' related programs, trade secrets, algorithms and processes relating to the Software Products or such programs, DigitalFacades' copyright in and to each of the Software Products and all works derivative therefrom (including the registrations of copyright listed on Schedule 2.17(a)), all current, previous, enhanced and developmental versions of the source and object code and any variations thereof, all user and programmer documentation, all design specifications, all maintenance and installation job control language, all system documentation (including all flow charts, systems procedures and program component descriptions), all procedures for modification and preparation for the release of enhanced versions and all test data available (excluding all proprietary information of third parties) with respect to the Software Products. (c) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), each of the Intellectual Property Licenses is valid, binding and enforceable in accordance with its terms against the parties thereto, DigitalFacades has performed all obligations imposed upon it thereunder, and neither DigitalFacades nor to the actual knowledge of DigitalFacades and the Stockholders any other party thereto is in default thereunder, nor is there any event which with notice or lapse of time, or both, would constitute a default by DigitalFacades thereunder nor, to the the actual knowledge of DigitalFacades and the Stockholders, a default thereunder by any other party thereunder. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), DigitalFacades has not received notice that any party to any of the Intellectual Property Licenses intends to cancel, terminate or refuse to renew the same or to exercise or decline to exercise any option or other right thereunder. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no licenses, sublicenses, covenants or agreements have been granted or entered into by DigitalFacades in respect of any of the Listed Intellectual Property except the Intellectual Property Licenses. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no director, officer, Stockholders or employee of DigitalFacades owns, directly or indirectly, in whole or in part, any of the Listed Intellectual Property. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), none of the employees or consultants of DigitalFacades is a party to any currently effective agreement regarding know-how, trade secrets, assignment of rights in inventions, or prohibition or restriction of competition or solicitation of customers, or any other similar restrictive agreement or covenant, whether written or oral, with any Person other than DigitalFacades. (d) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), since January 1, 1991 no Person has asserted to DigitalFacades any claim of infringement or other interference with third-party rights with respect to the Listed Intellectual Property. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), (i) DigitalFacades has not disclosed any source code regarding the Software Products to any Person other than to an employee of DigitalFacades, to ICC or to Rare Medium, (ii) DigitalFacades has at all times maintained reasonable procedures to protect and has enforced all material trade secrets of DigitalFacades; (iii) neither DigitalFacades nor any escrow agent is under any contractual or other obligation to disclose the source code or any other proprietary information included in or relating to the Software Products, nor is any other party to the Intellectual Property Licenses or any escrow agent under any such obligation to disclose any source code or other proprietary information included in or relating to Software Products, if any, that are licensed to DigitalFacades, or to any Person, and no event has taken place, including the execution of this Agreement or any related change in DigitalFacades' business activities, which would give rise to such obligation, and (iv) DigitalFacades has not deposited any source code regarding the Software Products into any source code escrows or similar arrangements. If, as disclosed on Schedule 2.17(a) or Schedule 2.17(b), DigitalFacades has deposited any source code to Software Products into source code escrows or similar arrangements, no event has occurred that has or could reasonably form the basis for a release of such source code from such escrows or arrangements. (e) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), the Software Products currently being marketed by DigitalFacades are free from known significant defects and substantially conform to the specifications, documentation and sample demonstration furnished to Rare Medium.
Appears in 1 contract
Patents, Trademarks. (a) DigitalFacades I/O 360 has a valid license to use each copy of mass-market third-party software used by it. Set forth on the Disclosure Schedule 2.17
(a) is a true and complete list of all material inventions, patents, trademarks, trade names, brand names, copyrights, and Software Products (as defined in paragraph (b) of this Section 2.17), trade secrets and formulae (collectively, the "Listed Intellectual Property") of any kind now used or reasonably anticipated to be used in the business of DigitalFacades I/O 360 except the mass-market third-party software described in the first sentence of this Section 2.17. The Disclosure Schedule 2.17(b) contains a complete list of all licenses or agreements which relate in any way affect the rights of I/O 360 to any of the Listed Intellectual Property (the "Intellectual Property Licenses"); such list indicates the specific Listed Intellectual Property affected by each such Intellectual Property License. Except as set forth on Schedules 2.17(a) or Schedule 2.17(b), neither DigitalFacades' Neither I/O 360's operations nor any Listed Intellectual Property owned by DigitalFacades or Intellectual Property License infringes or provides any basis to the actual knowledge of DigitalFacades believe that I/O 360's operations or the Stockholders, any Listed Intellectual Property or Intellectual Property License would infringe upon any validly issued or to the knowledge of DigitalFacades, I/O 360 or the Stockholders any pending trademark, trade name, service xxxx, copyright or, any validly issued or pending patent or other right of any other Person, nor, to the actual knowledge of DigitalFacades and the Stockholders, nor is there any infringement by any other Person of any of the Listed Intellectual Property or of the intellectual property to which the Intellectual Property Licenses relate. Except as specifically set forth on Schedule 2.17(a) or 2.17(b)the Disclosure Schedule, consummation of the transactions contemplated hereby and by the Operative Agreements Documents will not alter or impair DigitalFacades' I/O 360's rights to any of the Listed Intellectual Property or under any Intellectual Property License. The manner in which DigitalFacades I/O 360 has manufactured, packaged, shipped, advertised, labeled and sold its products complies with all applicable laws and regulations pertaining thereto, the failure to comply with which would have a material adverse effect upon the business, business prospects, assets, operations or condition (financial or other) of DigitalFacadesI/O 360.
(b) Except as specifically set forth on Schedule 2.17(a) or Schedule 2.17(b), DigitalFacades I/O 360 is the sole and exclusive owner or licensee of:
(i) the Listed Intellectual Property, the Intellectual Property Licenses and the technology, know-how and processes now used by DigitalFacadesI/O 360, or used in connection with any product now being manufactured and sold by DigitalFacadesI/O 360, in the manner that such product is now being manufactured and sold; and
(ii) all rightsright, title and interest of whatever kind or nature throughout the world in and to the fully or partially developed computer software products listed on Schedule 2.17(a) or Schedule 2.17(b)the Disclosure Schedule, with all modifications, enhancements and additions thereto, including, without limitation, all rights in and to all versions thereof and all source code, object code, manuals and other documentation and related materials thereof (collectively, the "Software Products"). Without limiting the generality of the above, the Software Products shall also include all of DigitalFacades' I/O 360's related programs, trade secrets, algorithms and processes relating to the Software Products or such programs, DigitalFacades' I/O 360's copyright in and to each of the Software Products and all works derivative therefrom (including the registrations of copyright listed on Schedule 2.17(a)the Disclosure Schedule), all current, previous, enhanced and developmental versions of the source and object code and any variations thereof, all user and programmer documentation, all design specifications, all maintenance and installation job control language, all system documentation (including all flow charts, systems procedures and program component descriptions), all procedures for modification and preparation for the release of enhanced versions and all test data available (excluding all proprietary information of third parties) with respect to the Software Products.
(c) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), each Each of the Intellectual Property Licenses is valid, binding and enforceable in accordance with its terms against the parties theretoI/O 360 (except as enforceability may be limited by bankruptcy, DigitalFacades insolvency, reorganization, moratorium and other laws affecting creditor's rights generally, or by general equitable principles), I/O 360 has performed all obligations imposed upon it thereunder, and neither DigitalFacades I/O 360 nor to the actual knowledge of DigitalFacades and the Stockholders any other party thereto is in default thereunder, nor is there any event which with notice or lapse of time, or both, would constitute a default by DigitalFacades thereunder nor, to the the actual knowledge of DigitalFacades and the Stockholders, a default thereunder by any other party thereunder. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), DigitalFacades I/O 360 has not received notice that any party to any of the Intellectual Property Licenses intends to cancel, terminate or refuse to renew the same or to exercise or decline to exercise any option or other right thereunder. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no No licenses, sublicenses, covenants or agreements have been granted or entered into by DigitalFacades I/O 360 in respect of any of the Listed Intellectual Property except the Intellectual Property Licenses. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no No director, officer, Stockholders or employee of DigitalFacades I/O 360 owns, directly or indirectly, in whole or in part, any of the Listed Intellectual Property. Except Neither I/O 360 nor the Stockholders know or have any reason to believe that there exists any new developments in the creation, publication or marketing of the products of I/O 360 or any new or improved products or processes useful in connection with the business of I/O 360 as set forth on Schedule 2.17(anow conducted or as presently anticipated to be conducted, except such developments, products and processes as would not have a material adverse effect upon the business, business prospects, assets, operations or condition (financial or other) or Schedule 2.17(b), of I/O 360. None of the officers of I/O 360 and none of the employees I/O 360's employees, consultants, distributors, agents, representatives or consultants of DigitalFacades is a party to advisers has entered into any currently effective agreement regarding know-how, trade secrets, assignment of rights in inventions, or prohibition or restriction of competition or solicitation of customers, or any other similar restrictive agreement or covenant, whether written or oral, with any Person other than DigitalFacadesI/O 360.
(d) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b)To I/O 360's knowledge, since January 1, 1991 no Person has asserted to DigitalFacades any claim of infringement or other interference with third-party rights with respect to the Listed Intellectual Property. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), (i) DigitalFacades I/O 360 has not disclosed any source code regarding the Software Products to any Person other than to an employee of DigitalFacadesI/O 360, to ICC or to Rare Medium, (ii) DigitalFacades . I/O 360 has at all times maintained reasonable procedures to protect and has enforced all material trade secrets of DigitalFacades; (iii) neither DigitalFacades I/O 360. Neither I/O 360 nor any escrow agent is under any contractual or other obligation to disclose the source code or any other proprietary information included in or relating to the Software Products, nor is any other party to the Intellectual Property Licenses or any escrow agent under any such obligation to disclose any source code or other proprietary information included in or relating to Software Products, if any, that are licensed to DigitalFacadesI/O 360, or to any Person, and no event has taken place, including the execution of this Agreement or any related change in DigitalFacades' I/O 360's business activities, which would give rise to such obligation, and (iv) DigitalFacades I/O 360 has not deposited any source code regarding the Software Products into any source code escrows or similar arrangements. If, as disclosed on Schedule 2.17(a) or Schedule 2.17(b), DigitalFacades I/O 360 has not deposited any source code to Software Products into source code escrows or similar arrangements, no event has occurred that has or could reasonably form the basis for a release of such source code from such escrows or arrangements.
(e) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), the The Software Products currently being marketed by DigitalFacades I/O 360 are free from known significant defects and substantially conform to the specifications, documentation and sample demonstration furnished to Rare Medium.
Appears in 1 contract
Patents, Trademarks. (a) DigitalFacades Alt5 has a valid license to use each copy of mass-market third-party software used by it. Set forth on Schedule 2.17
2.15 (a) is a true and complete list of all material inventions, patents, trademarks, trade names, brand names, copyrights, trade secrets, and Software Products (as defined in paragraph (b) of this Section 2.17), formulae (collectively, the "“Listed Intellectual Property"”) of any kind now used or reasonably anticipated to be used in the business of DigitalFacades Alt5 except the mass-market third-party software described in the first sentence of this Section 2.172.15. Schedule 2.17(b2.15(b) contains a complete list of all licenses or agreements which relate that, in any way, affect the rights of Alt5 to any of the Listed Intellectual Property (the "“Intellectual Property Licenses"”); such list indicates the specific Listed Intellectual Property affected by each such Intellectual Property License. Except as set forth on Schedules 2.17(a2.15(a) or and Schedule 2.17(b2.15(b), neither DigitalFacades' Alt5’s operations nor any Listed Intellectual Property owned by DigitalFacades or Intellectual Property License infringes or provides any basis to the actual knowledge of DigitalFacades believe that Alt5’s operations or the Stockholders, any Listed Intellectual Property or Intellectual Property License would infringe upon any validly issued or to the knowledge of DigitalFacades, Alt5 any pending trademark, trade name, service xxxxmark, copyright or, any validly issued or pending patent or other right of any other Person, nor, to the actual knowledge of DigitalFacades and the Stockholders, nor is there any infringement by any other Person of any of the Listed Intellectual Property or of the intellectual property to which the Intellectual Property Licenses relate. Except as specifically set forth on Schedule 2.17(a2.15(a) or 2.17(b2.15(b), consummation of the transactions contemplated hereby and by the Operative Agreements Documents will not alter or impair DigitalFacades' Alt5’s rights to any of the Listed Intellectual Property or under any Intellectual Property License. The manner in which DigitalFacades Alt5 has manufactured, packaged, shipped, advertised, labeled labeled, and sold its products complies with all applicable laws and regulations pertaining thereto, the failure to comply with which would have a material adverse effect upon the business, business prospects, assets, operations operations, or condition (financial or otherotherwise) of DigitalFacades.Alt5;
(b) Except as specifically set forth on Schedule 2.17(a2.15(a) or and Schedule 2.17(b2.15(b), DigitalFacades Alt5 is the sole and exclusive owner or licensee of:
(i) : the Listed Intellectual Property, the Intellectual Property Licenses Licenses, and the technology, know-how how, and processes now used used, or as presently anticipated to be used, by DigitalFacadesAlt5, or used in connection with any product now being manufactured and sold by DigitalFacadesAlt5, or as presently anticipated to be manufactured, marketed, or sold by Alt5, all in the manner that such product is now being manufactured and being, or as presently anticipated to be, manufactured, marketed, or sold; and
(ii) all rights, title and interest of whatever kind or nature throughout the world in and to the fully or partially developed computer software products listed on Schedule 2.17(a) or Schedule 2.17(b), with all modifications, enhancements and additions thereto, including, without limitation, all rights in and to all versions thereof and all source code, object code, manuals and other documentation and related materials thereof (collectively, the "Software Products"). Without limiting the generality of the above, the Software Products shall also include all of DigitalFacades' related programs, trade secrets, algorithms and processes relating to the Software Products or such programs, DigitalFacades' copyright in and to each of the Software Products and all works derivative therefrom (including the registrations of copyright listed on Schedule 2.17(a)), all current, previous, enhanced and developmental versions of the source and object code and any variations thereof, all user and programmer documentation, all design specifications, all maintenance and installation job control language, all system documentation (including all flow charts, systems procedures and program component descriptions), all procedures for modification and preparation for the release of enhanced versions and all test data available (excluding all proprietary information of third parties) with respect to the Software Products.;
(c) Except as set forth on Schedule 2.17(a2.15(a) or and Schedule 2.17(b2.15(b), each of the Intellectual Property Licenses is valid, binding binding, and enforceable in accordance with its respective terms against the parties thereto, DigitalFacades Alt5 has performed all material obligations imposed upon it thereunder, and neither DigitalFacades Alt5 nor to the actual knowledge of DigitalFacades and the Stockholders any other party thereto is in default thereunder, nor is there any event which that, with notice or lapse of time, or both, would constitute a default by DigitalFacades thereunder nor, to the the actual knowledge of DigitalFacades and the Stockholders, a default thereunder by any other party thereunder. Except as set forth on Schedule 2.17(a2.15(a) or and Schedule 2.17(b2.15(b), DigitalFacades Alt5 has not received notice that any party to any of the Intellectual Property Licenses intends to cancel, terminate terminate, or refuse to renew the same or to exercise or decline to exercise any option or other right thereunder. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no No licenses, sublicenses, covenants covenants, or agreements have been granted or entered into by DigitalFacades Alt5 in respect of any of the Listed Intellectual Property except the Intellectual Property Licenses. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no No director, officer, Stockholders stockholder, or employee of DigitalFacades Alt5 owns, directly or indirectly, in whole or in part, any of the Listed Intellectual Property. Except as set forth on Schedule 2.17(a2.15(a) or and Schedule 2.17(b2.15(b), Alt5 does not know or have any reason to believe that there exists any new developments in the creation, publication, or marketing of the products of Alt5 or any new or improved products or processes useful in connection with the business of Alt5 as now conducted or as presently anticipated to be conducted, except such developments, products, and processes as would not have a material adverse effect upon the business, business prospects, assets, operations, or condition (financial or otherwise) of Alt5. None of the officers of Alt5 and none of the employees Alt5’s employees, consultants, distributors, agents, representatives, or consultants of DigitalFacades is a party to advisers has entered into any currently effective agreement regarding know-how, trade secrets, assignment of rights in inventions, or prohibition or restriction of competition or solicitation of customers, or any other similar restrictive agreement or covenant, whether written or oral, with any Person other than DigitalFacades.Alt5; and
(d) Except as set forth on Schedule 2.17(a2.15(a) or and Schedule 2.17(b2.15(b), since January 1to Alt5’s knowledge, 1991 no Person has asserted to DigitalFacades any claim of infringement or other interference with third-party rights with respect to the Listed Intellectual Property. Except as set forth on Schedule 2.17(a2.15(a) or and Schedule 2.17(b2.15(b), (i) DigitalFacades Alt5 has not disclosed any source code regarding the Software Products to any Person other than to an employee of DigitalFacades, to ICC Alt5 or to Rare Mediuma Subsidiary, (ii) DigitalFacades Alt5 has at all times maintained reasonable procedures to protect and has enforced all material trade secrets of DigitalFacadesAlt5; (iii) neither DigitalFacades Alt5 nor any escrow agent is under any contractual or other obligation to disclose the source code or any other proprietary information included in or relating to the Software Products, nor is any other party to the Intellectual Property Licenses or any escrow agent under any such obligation to disclose any source code or other proprietary information included in or relating to Software Products, if any, that are licensed to DigitalFacadesAlt5, or to any Person, and no event has taken place, including the execution of this Agreement or any related change in DigitalFacades' Alt5’s business activities, which would give rise to such obligation, and (iv) DigitalFacades Alt5 has not deposited any source code regarding the Software Products into any source code escrows or similar arrangements. If, as disclosed on Schedule 2.17(a2.15(a) or and Schedule 2.17(b), DigitalFacades 2.15(b) Alt5 has deposited any source code to Software Products into source code escrows or similar arrangements, no event has occurred that has or could reasonably form the basis for a release of such source code from such escrows or arrangements.
(e) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), the Software Products currently being marketed by DigitalFacades are free from known significant defects and substantially conform to the specifications, documentation and sample demonstration furnished to Rare Medium.
Appears in 1 contract
Samples: Merger Agreement (JanOne Inc.)
Patents, Trademarks. (a) DigitalFacades has a valid license to use each copy of mass-market third-party software used by it. Set forth on Schedule 2.17
(a) in the Disclosure Binder, is a true and complete list of all material inventions, patents, trademarks, trade names, brand names, copyrights, and Software Products (as defined in paragraph (b) of this Section 2.17), trade secrets and formulae (collectively, the "Listed Intellectual Property") of any kind now used or reasonably anticipated to be used in the business of DigitalFacades Erevu except the mass-market third-party software described in the first sentence of this Section 2.17. Schedule 2.17(b) The Disclosure Binder contains a complete list of all licenses or agreements agreements, which relate in any way affect the rights of Erevu to any of the Listed Intellectual Property (the "Intellectual Property Licenses"); such list indicates the specific Listed Intellectual Property affected by each such Intellectual Property License. Except as set forth on Schedules 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, neither DigitalFacades' Erevu's operations nor any Listed Intellectual Property owned by DigitalFacades or Intellectual Property License infringes or provides any basis to the actual knowledge of DigitalFacades believe that Erevu's operations or the Stockholders, any Listed Intellectual Property or Intellectual Property License would infringe upon any validly issued or to the knowledge of DigitalFacades, Erevu or the Stockholders any pending trademark, trade name, service xxxx, copyright or, any validly issued or pending patent or other right of any other Person, nor, to the actual knowledge of DigitalFacades and the Stockholders, nor is there any infringement by any other Person of any of the Listed Intellectual Property or of the intellectual property to which the Intellectual Property Licenses relate. Except as specifically set forth on Schedule 2.17(a) or 2.17(b)in the Disclosure Binder, consummation of the transactions contemplated hereby and by the Operative Agreements Documents will not alter or impair DigitalFacades' Erevu's rights to any of the Listed Intellectual Property or under any Intellectual Property License. The manner in which DigitalFacades Erevu has manufactured, packaged, shipped, advertised, labeled and sold its products substantially complies with all applicable laws and regulations pertaining thereto, the failure to comply with which would have a material adverse effect upon the business, business prospects, assets, operations or condition (financial or other) of DigitalFacadesErevu.
(b) Except as specifically set forth on Schedule 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, DigitalFacades Erevu is the sole and exclusive owner or licensee of:
(i) the Listed Intellectual Property, the Intellectual Property Licenses and the technology, know-how and processes now used by DigitalFacadesErevu, or used in connection with any product now being manufactured and sold by DigitalFacadesErevu, in the manner that such product is now being manufactured and sold; and
(ii) all rights, title and interest of whatever kind or nature throughout the world in and to the fully or partially developed computer software products listed on Schedule 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, with all modifications, enhancements and additions thereto, including, without limitation, all rights in and to all versions thereof and all source code, object code, manuals and other documentation and related materials thereof (collectively, the "Software Products"). Without limiting the generality of the above, the Software Products shall also include all of DigitalFacades' Erevu's related programs, trade secrets, algorithms and processes relating to the Software Products or such programs, DigitalFacades' Erevu's copyright in and to each of the Software Products and all works derivative therefrom (including the registrations of copyright listed on Schedule 2.17(a)in the Disclosure Binder), all current, previous, enhanced and developmental versions of the source and object code and any variations thereof, all user and programmer documentation, all design specifications, all maintenance and installation job control language, all system documentation (including all flow charts, systems procedures and program component descriptions), all procedures for modification and preparation for the release of enhanced versions and all test data available (excluding all proprietary information of third parties) with respect to the Software Products.
(c) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, each of the Intellectual Property Licenses is valid, binding and enforceable in accordance with its terms against the parties theretothereto (subject, DigitalFacades as to enforceability, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability affecting the rights of creditors and to general principles of equity), Erevu has performed all obligations imposed upon it thereunder, and neither DigitalFacades Erevu nor to the actual knowledge of DigitalFacades and the Stockholders any other party thereto is in default thereunder, nor is there any event which with notice or lapse of time, or both, would constitute a default by DigitalFacades thereunder nor, to the the actual knowledge of DigitalFacades and the Stockholders, a default thereunder by any other party thereunder. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, DigitalFacades Erevu has not received notice that any party to any of the Intellectual Property Licenses intends to cancel, terminate or refuse to renew the same or to exercise or decline to exercise any option or other right thereunder. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no No licenses, sublicenses, covenants or agreements have been granted or entered into by DigitalFacades Erevu in respect of any of the Listed Intellectual Property except the Intellectual Property Licenses. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), no No director, officer, Stockholders or employee of DigitalFacades Erevu owns, directly or indirectly, in whole or in part, any of the Listed Intellectual Property. , Except as set forth on Schedule 2.17(ain the Disclosure Binder, neither Erevu nor the Stockholders know or have any reason to believe that there exists any new developments in the creation, publication or marketing of the products of Erevu or any new or improved products or processes useful in connection with the business of Erevu as now conducted or as presently anticipated to be conducted, except such developments, products and processes as would not have a material adverse effect upon the business, business prospects, assets, operations or condition (financial or other) or Schedule 2.17(b), of Erevu. None of the officers of Erevu and none of the employees Erevu's employees, consultants, distributors, agents, representatives or consultants of DigitalFacades is a party to advisers has entered into any currently effective agreement regarding know-how, trade secrets, assignment of rights in inventions, or prohibition or restriction of competition or solicitation of customers, or any other similar restrictive agreement or covenant, whether written or oral, with any Person other than DigitalFacadesErevu.
(d) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, since January 1, 1991 no Person has asserted to DigitalFacades any claim of infringement or other interference with third-party rights with respect to the Listed Intellectual Property. Except as set forth on Schedule 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, (i) DigitalFacades Erevu has not disclosed any source code regarding the Software Products to any Person other than to an employee of DigitalFacades, to ICC Erevu or to Rare MediumAladdin Holdings, (ii) DigitalFacades Erevu has at all times maintained reasonable procedures to protect and has enforced all material trade secrets of DigitalFacadesErevu; (iii) neither DigitalFacades Erevu nor any escrow agent is under any contractual or other obligation to disclose the source code or any other proprietary information included in or relating to the Software Products, nor is any other party to the Intellectual Property Licenses or any escrow agent under any such obligation to disclose any source code or other proprietary information included in or relating to Software Products, if any, that are licensed to DigitalFacadesErevu, or to any Person, and no event has taken place, including the execution of this Agreement or any related change in DigitalFacades' Erevu's business activities, which would give rise to such obligation, and (iv) DigitalFacades Erevu has not deposited any source code regarding the Software Products into any source code escrows or similar arrangements. If, as disclosed on Schedule 2.17(a) or Schedule 2.17(b)in the Disclosure Binder, DigitalFacades Erevu has deposited any source code to Software Products into source code escrows or similar arrangements, no event has occurred that has or could reasonably form the basis for a release of such source code from such escrows or arrangements.
(e) Except as set forth on Schedule 2.17(a) or Schedule 2.17(b), Aladdin Holdings acknowledges that the Erevu and the Erevu Software Products currently are being marketed by DigitalFacades acquired "AS IS"; that the Erevu Software Products are in early stages of their development; and that the Erevu Software Products require substantial improvements before they are free from known significant material defects and substantially conform are ready for delivery to the specifications, documentation and sample demonstration furnished to Rare Mediumpotential customers.
Appears in 1 contract
