Property; Licenses, Etc. (a) Schedule 6.17(a) sets forth a complete and accurate list of the following as of the Effective Date: (i) all Copyrights and all Trademarks of any Loan Party or any Subsidiary, that are registered, or in respect of which an application for registration has been filed or recorded, with the United States Patent and Trademark Office, the United States Copyright Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Copyrights and Trademarks, (ii) all Patents of any Loan Party or any Subsidiary that are issued, or in respect of which an application has been filed or recorded, with the United States Patent and Trademark Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Patents, (iii) all Domain Names owned by any Loan Party or any Subsidiary or which any Loan Party or any Subsidiary is licensed, authorized or otherwise granted rights under or to, or owned by a Person on behalf of any Loan Party, together with relevant identifying information with respect to such Domain Names, (iv) all material Proprietary Software of any Loan Party or any Subsidiary, (v) each Copyright License (excluding (A) in-licenses of third-party software that is generally commercially available and/or off-the-shelf and (B) non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format), each Patent License and each Trademark License of any Loan Party or any Subsidiary and (vi) each other item of Material IP Rights, in each case of the foregoing clauses (i) through (vi), that (A) is owned or controlled by any Loan Party or any Subsidiary or (B) constitutes Material IP Rights and is being licensed to any Loan Party or any Subsidiary. Schedule 1.01 sets forth a complete and accurate list of all Services as of the Effective Date. (b) The Material IP Rights are subsisting, valid, unexpired and enforceable, and have not been abandoned. To the Borrower’s knowledge after reasonable inquiry, no claim has been made that the use or other exploitation by the Borrower, any Subsidiary or any of their licensees of any of the IP Rights or advertising, displaying, importing, manufacturing, having manufactured, marketing, offering for sale, performing, preparing derivative works based upon, promoting, reproducing, selling, using and/or otherwise distributing or providing a Product or Service, does or may infringe, violate or misappropriate the rights of any Person. No holding, decision or judgment has been rendered by any Governmental Authority that would limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right and, except for rejections issued by a Governmental Authority in the ordinary course of prosecuting Patent or Trademark applications, no action or proceeding is pending seeking to limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right that, in any case, if adversely determined, could reasonably be expected, either individually or in the aggregate, to have a material adverse effect on the value of any Material IP Right. The Borrower and its Subsidiaries have, since taking title to the Material IP Rights, performed all acts and have paid all required annuities, fees, costs, expenses and taxes to maintain the Material IP Rights in full force and effect throughout the world, as applicable, other than routine abandonments associated with patent prosecution. All applications for registration pertaining to the Material IP Rights have been duly and properly filed, and all registrations or letters patent pertaining to such Material IP Rights have been duly and properly filed and issued. The Borrower and its Subsidiaries own, or are entitled to use by license or otherwise, all the IP Rights. Neither the Borrower nor any Subsidiary has made any assignment or agreement in conflict with, and no license agreement with respect to the Material IP Rights conflicts with the security interest in the Material IP Rights of the Loan Parties granted to the Administrative Agent, on behalf of the Secured Parties, pursuant to the terms of the Collateral Documents. To the extent any of the Material IP Rights were authored, developed, conceived or created, in whole or in part, for or on behalf of the Borrower or any Subsidiary by any Person, then the Borrower or such Subsidiary has entered into a written agreement with such Person in which such Person has assigned all right, title and interest in and to such Material IP Rights to the Borrower or such Subsidiary. To the knowledge of the Borrower after reasonable inquiry, no slogan, advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary or any licensee of the Borrower or any Subsidiary, and no activity performed therewith, violates, infringes or misappropriates any rights held by any other Person. No claim or litigation regarding any of the IP Rights is pending or, to the knowledge of the Borrower after reasonable inquiry, threatened. None of the Material IP Rights is subject to any license grant, covenant not to sue, or release by the Borrower or any Subsidiary or similar arrangement, except for (w) license grants between the Loan Parties, (x) those license grants disclosed on Schedule 6.17(a), (y) in-licenses of third-party software that is generally commercially available and/or off-the-shelf, and (z) non-exclusive licenses granted to end users or customers for Proprietary Software in object code format. (c) The use of the Proprietary Software owned by the Borrower or any Subsidiary does not breach any term of any license or other contract between the Borrower or its Subsidiaries, on the one hand, and any third party, on the other hand, in any material respect. The Borrower and its Subsidiaries are in material compliance with the terms and conditions of all license agreements relating to the Proprietary Software licensed to the Borrower or any Subsidiary. The source code for the Proprietary Software owned by the Borrower or any Subsidiary is and has been maintained in confidence and is not maintained (or required to be maintained) in a software escrow for any customer or other third party. The Borrower or its Subsidiaries have actual possession of the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), workbenches, tools and higher level language used for the development, maintenance, implementation and use of the Proprietary Software owned by the Borrower or any Subsidiary. The Borrower and its Subsidiaries have not granted any rights in the Proprietary Software to any third party except for non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format. The Proprietary Software owned by the Borrower or any Subsidiary materially operates in accordance with and materially conforms to any specification, manual, guide, description and other similar documentation delivered by the Borrower or its Subsidiaries to customers, end-users, original equipment manufacturers or resellers. (d) Schedule 6.17(d) contains a list of all Open Source Software incorporated in, embedded in or used by the material Proprietary Software owned by the Borrower or any Subsidiary, and describes the manner in which any Open Source Software is used. No part of the Proprietary Software owned by the Borrower or any Subsidiary is licensed, distributed or disclosed, or required by the terms of any license to any Open Source Software to be licensed, distributed or disclosed, pursuant to such license. The use and distribution of all Open Source Software by the Borrower and its Subsidiaries is in compliance in all material respects with all licenses applicable thereto. (e) Except as set forth on Schedule 6.17(e), the consummation of the transactions contemplated hereby (including, without limitation, the Success Acquisition) and the exercise by the Administrative Agent or the Lenders of any right or protection set forth in this Agreement will not constitute a breach or violation of, or otherwise affect the enforceability or approval of, (i) any licenses associated with IP Rights or (ii) Governmental Licenses.
Appears in 1 contract
Property; Licenses, Etc. (a) Schedule 6.17(a) sets forth a complete and accurate list of the following as of the Effective Date: (i) all Copyrights and all Trademarks of any Loan Party or any Subsidiary, that are registered, or in respect of which an application for registration has been filed or recorded, with the United States Patent and Trademark Office, the United States Copyright Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Copyrights and Trademarks, (ii) all Patents of any Loan Party or any Subsidiary that are issued, or in respect of which an application has been filed or recorded, with the United States Patent and Trademark Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Patents, (iii) all Domain Names owned by any Loan Party or any Subsidiary or which any Loan Party or any Subsidiary is licensed, authorized or otherwise granted rights under or to, or owned by a Person on behalf of any Loan Party, together with relevant identifying information with respect to such Domain Names, (iv) all material Proprietary Software of any Loan Party or any Subsidiary, (v) each Copyright License (excluding (A) in-licenses of third-party software that is generally commercially available and/or off-the-shelf and (B) non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format), each Patent License and each Trademark License of any Loan Party or any Subsidiary and (vi) each other item of Material IP Rights, in each case of the foregoing clauses (i) through (vi), that (A) is owned or controlled by any Loan Party or any Subsidiary or (B) constitutes Material IP Rights and is being licensed to any Loan Party or any Subsidiary. Schedule 1.01 sets forth a complete and accurate list of all Services as of the Effective Date.
(b) The Material IP Rights are subsisting, valid, unexpired and enforceable, and have not been abandoned. To the Borrower’s knowledge after reasonable inquiry, no claim has been made that the use or other exploitation by the Borrower, any Subsidiary or any of their licensees of any of the IP Rights or advertising, displaying, importing, manufacturing, having manufactured, marketing, offering for sale, performing, preparing derivative works based upon, promoting, reproducing, selling, using and/or otherwise distributing or providing a Product or Service, does or may infringe, violate or misappropriate the rights of any Person. No holding, decision or judgment has been rendered by any Governmental Authority that would limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right and, except for rejections issued by a Governmental Authority in the ordinary course of prosecuting Patent or Trademark applications, no action or proceeding is pending seeking to limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right that, in any case, if adversely determined, could reasonably be expected, either individually or in the aggregate, to have a material adverse effect on the value of any Material IP Right. The Borrower and its Subsidiaries have, since taking title to the Material IP Rights, performed all acts and have paid all required annuities, fees, costs, expenses and taxes to maintain the Material IP Rights in full force and effect throughout the world, as applicable, other than routine abandonments associated with patent prosecution. All applications for registration pertaining to the Material IP Rights have been duly and properly filed, and all registrations or letters patent pertaining to such Material IP Rights have been duly and properly filed and issued. The Borrower and its Subsidiaries own, or are entitled to use by license or otherwise, all the IP Rights. Neither the Borrower nor any Subsidiary has made any assignment or agreement in conflict with, and no license agreement with respect to the Material IP Rights conflicts with the security interest in the Material IP Rights of the Loan Parties granted to the Administrative Agent, on behalf of the Secured Parties, pursuant to the terms of the Collateral Documents. To the extent any of the Material IP Rights were authored, developed, conceived or created, in whole or in part, for or on behalf of the Borrower or any Subsidiary by any Person, then the Borrower or such Subsidiary has entered into a written agreement with such Person in which such Person has assigned all right, title and interest in and to such Material IP Rights to the Borrower or such Subsidiary. To the knowledge of the Borrower after reasonable inquiry, no slogan, advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary or any licensee of the Borrower or any Subsidiary, and no activity performed therewith, violates, infringes or misappropriates any rights held by any other Person. No claim or litigation regarding any of the IP Rights is pending or, to the knowledge of the Borrower after reasonable inquiry, threatened. None of the Material IP Rights is subject to any license grant, covenant not to sue, or release by the Borrower or any Subsidiary or similar arrangement, except for (w) license grants between the Loan Parties, (x) those license grants disclosed on Schedule 6.17(a), (y) in-licenses of third-party software that is generally commercially available and/or off-the-shelf, and (z) non-exclusive licenses granted to end users or customers for Proprietary Software in object code format.
(c) The use of the Proprietary Software owned by the Borrower or any Subsidiary does not breach any term of any license or other contract between the Borrower or its Subsidiaries, on the one hand, and any third party, on the other hand, in any material respect. The Borrower and its Subsidiaries are in material compliance with the terms and conditions of all license agreements relating to the Proprietary Software licensed to the Borrower or any Subsidiary. The source code for the Proprietary Software owned by the Borrower or any Subsidiary is and has been maintained in confidence and is not maintained (or required to be maintained) in a software escrow for any customer or other third party. The Borrower or its Subsidiaries have actual possession of the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), workbenches, tools and higher level language used for the development, maintenance, implementation and use of the Proprietary Software owned by the Borrower or any Subsidiary. The Borrower and its Subsidiaries have not granted any rights in the Proprietary Software to any third party except for non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format. The Proprietary Software owned by the Borrower or any Subsidiary materially operates in accordance with and materially conforms to any specification, manual, guide, description and other similar documentation delivered by the Borrower or its Subsidiaries to customers, end-users, original equipment manufacturers or resellers.
(d) Schedule 6.17(d) contains a list of all Open Source Software incorporated in, embedded in or used by the material Proprietary Software owned by the Borrower or any Subsidiary, and describes the manner in which any Open Source Software is used. No part of the Proprietary Software owned by the Borrower or any Subsidiary is licensed, distributed or disclosed, or required by the terms of any license to any Open Source Software to be licensed, distributed or disclosed, pursuant to such license. The use and distribution of all Open Source Software by the Borrower and its Subsidiaries is in compliance in all material respects with all licenses applicable thereto.
(e) Except as set forth on Schedule 6.17(e), the consummation of the transactions contemplated hereby (including, without limitation, the Success Acquisition) and the exercise by the Administrative Agent or the Lenders of any right or protection set forth in this Agreement will not constitute a breach or violation of, or otherwise affect the enforceability or approval of, (i) any licenses associated with IP Rights or (ii) Governmental Licenses.
Appears in 1 contract
Property; Licenses, Etc. (a) Schedule 6.17(a) sets forth a complete and accurate list of the following as of the Effective Date: (i) all Copyrights and all Trademarks of any Loan Party or any Subsidiary, that are registered, or in respect of which an application for registration has been filed or recorded, with the United States Patent and Trademark Office, the United States Copyright Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Copyrights and Trademarks, (ii) all Patents of any Loan Party or any Subsidiary that are issued, or in respect of which an application has been filed or recorded, with the United States Patent and Trademark Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Patents, (iii) all Domain Names owned by any Loan Party or any Subsidiary or which any Loan Party or any Subsidiary is licensed, authorized or otherwise granted rights under or to, or owned by a Person on behalf of any Loan Party, together with relevant identifying information with respect to such Domain Names, (iv) all material Proprietary Software of any Loan Party or any Subsidiary, (v) each Copyright License (excluding (A) in-licenses of third-party software that is generally commercially available and/or off-the-shelf and (B) non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format), each Patent License and each Trademark License of any Loan Party or any Subsidiary and (vi) each other item of Material IP Rights, in each case of the foregoing clauses (i) through (vi), that (A) is owned or controlled by any Loan Party or any Subsidiary or (B) constitutes Material IP Rights and is being licensed to any Loan Party or any Subsidiary. Schedule 1.01 sets forth a complete and accurate list of all Services as of the Effective Date.
(b) The Material IP Rights are subsisting, valid, unexpired and enforceable, and have not been abandoned. To the Borrower’s knowledge after reasonable inquiry, no claim has been made that the use or other exploitation by the Borrower, any Subsidiary or any of their licensees of any of the IP Rights or advertising, displaying, importing, manufacturing, having manufactured, marketing, offering for sale, performing, preparing derivative works based upon, promoting, reproducing, selling, using and/or otherwise distributing or providing a Product or Service, does or may infringe, violate or misappropriate the rights of any Person. No holding, decision or judgment has been rendered by any Governmental Authority that would limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right and, except for rejections issued by a Governmental Authority in the ordinary course of prosecuting Patent or Trademark applications, no action or proceeding is pending seeking to limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right that, in any case, if adversely determined, could reasonably be expected, either individually or in the aggregate, to have a material adverse effect on the value of any Material IP Right. The Borrower and its Subsidiaries have, since taking title to the Material IP Rights, performed all acts and have paid all required annuities, fees, costs, expenses and taxes to maintain the Material IP Rights in full force and effect throughout the world, as applicable, other than routine abandonments associated with patent prosecution. All applications for registration pertaining to the Material IP Rights have been duly and properly filed, and all registrations or letters patent pertaining to such Material IP Rights have been duly and properly filed and issued. The Borrower and its Subsidiaries own, or are entitled to use by license or otherwise, all the IP Rights. Neither the Borrower nor any Subsidiary has made any assignment or agreement in conflict with, and no license agreement with respect to the Material IP Rights conflicts with the security interest in the Material IP Rights of the Loan Parties granted to the Administrative Agent, on behalf of the Secured Parties, pursuant to the terms of the Collateral Documents. To the extent any of the Material IP Rights were authored, developed, conceived or created, in whole or in part, for or on behalf of the Borrower or any Subsidiary by any Person, then the Borrower or such Subsidiary has entered into a written agreement with such Person in which such Person has assigned all right, title and interest in and to such Material IP Rights to the Borrower or such Subsidiary. To the knowledge of the Borrower after reasonable inquiry, no slogan, advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary or any licensee of the Borrower or any Subsidiary, and no activity performed therewith, violates, infringes or misappropriates any rights held by any other Person. No claim or litigation regarding any of the IP Rights is pending or, to the knowledge of the Borrower after reasonable inquiry, threatened. None of the Material IP Rights is subject to any license grant, covenant not to sue, or release by the Borrower or any Subsidiary or similar arrangement, except for (w) license grants between the Loan Parties, (x) those license grants disclosed on Schedule 6.17(a), (y) in-licenses of third-party software that is generally commercially available and/or off-the-shelf, and (z) non-exclusive licenses granted to end users or customers for Proprietary Software in object code format.
(c) The use of the Proprietary Software owned by the Borrower or any Subsidiary does not breach any term of any license or other contract between the Borrower or its Subsidiaries, on the one hand, and any third party, on the other hand, in any material respect. The Borrower and its Subsidiaries are in material compliance with the terms and conditions of all license agreements relating to the Proprietary Software licensed to the Borrower or any Subsidiary. The source code for the Proprietary Software owned by the Borrower or any Subsidiary is and has been maintained in confidence and is not maintained (or required to be maintained) in a software escrow for any customer or other third party. The Borrower or its Subsidiaries have actual possession of the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), workbenches, tools and higher level language used for the development, maintenance, implementation and use of the Proprietary Software owned by the Borrower or any Subsidiary. The Borrower and its Subsidiaries have not granted any rights in the Proprietary Software to any third party except for non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format. The Proprietary Software owned by the Borrower or any Subsidiary materially operates in accordance with and materially conforms to any specification, manual, guide, description and other similar documentation delivered by the Borrower or its Subsidiaries to customers, end-users, original equipment manufacturers or resellers.
(d) Schedule 6.17(d) contains a list of all Open Source Software incorporated in, embedded in or used by the material Proprietary Software owned by the Borrower or any Subsidiary, and describes the manner in which any Open Source Software is used. No part of the Proprietary Software owned by the Borrower or any Subsidiary is licensed, distributed or disclosed, or required by the terms of any license to any Open Source Software to be licensed, distributed or disclosed, pursuant to such license. The use and distribution of all Open Source Software by the Borrower and its Subsidiaries is in compliance in all material respects with all licenses applicable thereto.
(e) Except as set forth on Schedule 6.17(e), the consummation of the transactions contemplated hereby (including, without limitation, the Success Acquisition) and the exercise by the Administrative Agent or the Lenders of any right or protection set forth in this Agreement will not constitute a breach or violation of, or otherwise affect the enforceability or approval of, (i) any licenses associated with IP Rights or (ii) Governmental Licenses.
Appears in 1 contract
Property; Licenses, Etc. (a) Schedule 6.17(a) sets forth a complete and accurate list of the following as of the Effective Date: (i) all Copyrights and all Trademarks of any Loan Party or any Subsidiary, that are registered, or in respect of which an application for registration has been filed or recorded, with the United States Patent and Trademark Office, the United States Copyright Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Copyrights and Trademarks, (ii) all Patents of any Loan Party or any Subsidiary that are issued, or in respect of which an application has been filed or recorded, with the United States Patent and Trademark Office, the Canadian Intellectual Property Office or with any other Governmental Authority (or comparable organization or office established in any country or pursuant to an international treaty or similar international agreement for the filing, recordation or registration of interests in intellectual property), together with relevant identifying information with respect to such Patents, (iii) all Domain Names owned by any Loan Party or any Subsidiary or which any Loan Party or any Subsidiary is licensed, authorized or otherwise granted rights under or to, or owned by a Person on behalf of any Loan Party, together with relevant identifying information with respect to such Domain Names, (iv) all material Proprietary Software of any Loan Party or any Subsidiary, (v) each Copyright License (excluding (A) in-licenses of third-party software that is generally commercially available and/or off-the-shelf and (B) non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format), each Patent License and each Trademark License of any Loan Party or any Subsidiary and (vi) each other item of Material IP Rights, in each case of the foregoing clauses (i) through (vi), that (A) is owned or controlled by any Loan Party or any Subsidiary or (B) constitutes Material IP Rights and is being licensed to any Loan Party or any Subsidiary. Schedule 1.01 sets forth a complete and accurate list of all Services as of the Effective Date.
(b) The Material IP Rights are subsisting, valid, unexpired and enforceable, and have not been abandoned. To the Borrower’s knowledge after reasonable inquiry, no claim has been made that the use or other exploitation by the Borrower, any Subsidiary or any of their licensees of any of the IP Rights or advertising, displaying, importing, manufacturing, having manufactured, marketing, offering for sale, performing, preparing derivative works based upon, promoting, reproducing, selling, using and/or otherwise distributing or providing a Product or Service, does or may infringe, violate or misappropriate the rights of any Person. No holding, decision or judgment has been rendered by any Governmental Authority that would limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right and, except for rejections issued by a Governmental Authority in the ordinary course of prosecuting Patent or Trademark applications, no action or proceeding is pending seeking to limit, invalidate, render unenforceable, cancel or question the validity of any Material IP Right that, in any case, if adversely determined, could reasonably be expected, either individually or in the aggregate, to have a material adverse effect on the value of any Material IP Right. The Borrower and its Subsidiaries have, since taking title to the Material IP Rights, performed all acts and have paid all required annuities, fees, costs, expenses and taxes to maintain the Material IP Rights in full force and effect throughout the world, as applicable, other than routine abandonments associated with patent prosecution. All applications for registration pertaining to the Material IP Rights have been duly and properly filed, and all registrations or letters patent pertaining to such Material IP Rights have been duly and properly filed and issued. The Borrower and its Subsidiaries own, or are entitled to use by license or otherwise, all the IP Rights. Neither the Borrower nor any Subsidiary has made any assignment or agreement in conflict with, and no license agreement with respect to the Material IP Rights conflicts with the security interest in the Material IP Rights of the Loan Parties granted to the Administrative Agent, on behalf of the Secured Parties, pursuant to the terms of the Collateral Documents. To the extent any of the Material IP Rights were authored, developed, conceived or created, in whole or in part, for or on behalf of the Borrower or any Subsidiary by any Person, then the Borrower or such Subsidiary has entered into a written agreement with such Person in which such Person has assigned all right, title and interest in and to such Material IP Rights to the Borrower or such Subsidiary. To the knowledge of the Borrower after reasonable inquiry, no slogan, advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary or any licensee of the Borrower or any Subsidiary, and no activity performed therewith, violates, infringes or misappropriates any rights held by any other Person. No claim or litigation regarding any of the IP Rights is pending or, to the knowledge of the Borrower after reasonable inquiry, threatened. None of the Material IP Rights is subject to any license grant, covenant not to sue, or release by the Borrower or any Subsidiary or similar arrangement, except for (w) license grants between the Loan Parties, (x) those license grants disclosed on Schedule 6.17(a), (y) in-licenses of third-party software that is generally commercially available and/or off-the-shelf, and (z) non-exclusive licenses granted to end users or customers for Proprietary Software in object code format.
(c) The use of the Proprietary Software owned by the Borrower or any Subsidiary does not breach any term of any license or other contract between the Borrower or its Subsidiaries, on the one hand, and any third party, on the other hand, in any material respect. The Borrower and its Subsidiaries are in material compliance with the terms and conditions of all license agreements relating to the Proprietary Software licensed to the Borrower or any Subsidiary. The source code for the Proprietary Software owned by the Borrower or any Subsidiary is and has been maintained in confidence and is not maintained (or required to be maintained) in a software escrow for any customer or other third party. The Borrower or its Subsidiaries have actual possession of the source code, system documentation, statements of principles of operation and schematics, as well as any pertinent commentary, explanation, program (including compilers), workbenches, tools and higher level language used for the development, maintenance, implementation and use of the Proprietary Software owned by the Borrower or any Subsidiary. The Borrower and its Subsidiaries have not granted any rights in the Proprietary Software to any third party except for non-exclusive licenses granted to end users or customers for the Proprietary Software in object code format. The Proprietary Software owned by the Borrower or any Subsidiary materially operates in accordance with and materially conforms to any specification, manual, guide, description and other similar documentation delivered by the Borrower or its Subsidiaries to customers, end-users, original equipment manufacturers or resellers.
(d) Schedule 6.17(d) contains a list of all Open Source Software incorporated in, embedded in or used by the material Proprietary Software owned by the Borrower or any Subsidiary, and describes the manner in which any Open Source Software is used. No part of the Proprietary Software owned by the Borrower or any Subsidiary is licensed, distributed or disclosed, or required by the terms of any license to any Open Source Software to be licensed, distributed or disclosed, pursuant to such license. The use and distribution of all Open Source Software by the Borrower and its Subsidiaries is in compliance in all material respects with all licenses applicable thereto.
(e) Except as set forth on Schedule 6.17(e), the consummation of the transactions contemplated hereby (including, without limitation, the Success Acquisition) and the exercise by the Administrative Agent or the Lenders of any right or protection set forth in this Agreement will not constitute a breach or violation of, or otherwise affect the enforceability or approval of, (i) any licenses associated with IP Rights or (ii) Governmental Licenses.
Appears in 1 contract
