Common use of Proprietary Rights and Warranty Claims Clause in Contracts

Proprietary Rights and Warranty Claims. (a) Section 3.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Proprietary Asset owned or used by IUMA (each a "IUMA Proprietary Asset" and collectively, the "IUMA Proprietary Assets") registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such IUMA Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Section 3.9(a)(ii) of the IUMA Disclosure Schedule identifies and provides a brief description of all other IUMA Proprietary Assets. Section 3.9(a)(iii) of the IUMA Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to IUMA by any Person (except for any Proprietary Asset that is licensed to IUMA under any third party software license generally available to the public at a cost of less than One Thousand Dollars ($1,000)), and identifies the license agreement under which such Proprietary Asset is being licensed to IUMA. Except as set forth in Section 3.9(a)(iv) of the IUMA Disclosure Schedule, IUMA has good, valid and marketable title to all IUMA Proprietary Assets identified in Sections 3.9(a)(i) and 3.9(a)(ii) of the IUMA Disclosure Schedule, free and clear of all liens and other encumbrances and of all third party licensed technology, and has a valid right to use all Proprietary Assets identified in Section 3.9(a)(iii) of the IUMA Disclosure Schedule. Except as set forth in Section 3.9(a)(v) of the IUMA Disclosure Schedule, IUMA is not obligated to make any payment to any Person for the use of any Proprietary Asset. Except as set forth in Section 3.9(a)(vi) of the IUMA Disclosure Schedule, IUMA has not developed jointly with any other Person any Proprietary Asset with respect to which such other Person has any rights. (b) Except as set forth in Section 3.9(b) of the IUMA Disclosure Schedule, IUMA has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of all IUMA Proprietary Assets (except IUMA Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all IUMA Proprietary Assets. Except as set forth in the IUMA Disclosure Schedule, IUMA has not disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of any of the IUMA Proprietary Assets used in or necessary for the conduct of business by IUMA as currently conducted by IUMA. (c) IUMA is not infringing, misappropriating or making any unlawful use of, and IUMA has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other person ("Third Party Proprietary Asset"). No other person is infringing, misappropriating or making any unlawful use of, and no Third Party Proprietary Asset owned or used by any other person infringes or conflicts with, any IUMA Proprietary Asset. (d) Except as set forth in Section 3.9(d) of the IUMA Disclosure Schedule: (i) each IUMA Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of IUMA; and (ii) there has not been any claim made against IUMA by any customer or other person alleging that any IUMA Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by IUMA to any person) does not conform in any material respect with any specification, documentation, performance standard, representation or statement made or provided by or on behalf of IUMA, and there is no basis for any such claim. (e) IUMA's Proprietary Assets constitute all the proprietary assets necessary to enable IUMA to conduct its business in the manner in which such business has been and is being conducted. Except as set forth in Section 3.9(e) of the IUMA Disclosure Schedule, (i) IUMA has not licensed any of the IUMA Proprietary Assets to any person and (ii) IUMA has not entered into any covenant not to compete or contract limiting its ability to exploit fully any of the IUMA Proprietary Assets or to transact business in any market or geographical area or with any person.

Proprietary Rights and Warranty Claims. (a) Section 3.9(a)(i2.9(a)(i) of the Enerdyne Disclosure Schedule sets forth, with respect to each Enerdyne Proprietary Asset owned or used by IUMA (each a "IUMA Proprietary Asset" and collectively, the "IUMA Proprietary Assets") registered with any Governmental Body or for which an application for registration has been filed with any Governmental Body, (i) a brief description of such IUMA Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Section 3.9(a)(ii2.9(a)(ii) of the IUMA Disclosure Schedule identifies and provides a brief description of all other IUMA Proprietary Assets. Section 3.9(a)(iii) of the IUMA Enerdyne Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to IUMA Enerdyne by any Person (except for any Proprietary Asset that is licensed to IUMA Enerdyne under any third party software license generally available to the public at a cost of less than One Ten Thousand Dollars ($1,00010,000)), and identifies the license agreement under which such Proprietary Asset is being licensed to IUMAEnerdyne. Except as set forth in Section 3.9(a)(iv2.9(a)(iii) of the IUMA Enerdyne Disclosure Schedule, IUMA Enerdyne has good, valid and marketable title to all IUMA Enerdyne Proprietary Assets identified used in Sections 3.9(a)(i) and 3.9(a)(ii) or necessary for the conduct of the IUMA Disclosure Schedule, its business free and clear of all material liens and other encumbrances and of all encumbrances, except for third party rights licensed technologyto it, and which it has a valid right to use all with respect to such Enerdyne Proprietary Assets identified in Section 3.9(a)(iii) (all of the IUMA Disclosure Scheduleforegoing are referred to herein as "Enerdyne Proprietary Rights"). Except as set forth in Section 3.9(a)(v2.9(a)(iv) of the IUMA Enerdyne Disclosure Schedule, IUMA Enerdyne is not obligated to make any material payment to any Person for the use of any Enerdyne Proprietary Asset. Except as set forth in Section 3.9(a)(vi2.9(a)(v) of the IUMA Enerdyne Disclosure Schedule, IUMA Enerdyne has not developed jointly with any other Person any Enerdyne Proprietary Asset with respect to which such other Person has any rights. (b) Except as set forth in Section 3.9(b2.9(b) of the IUMA Enerdyne Disclosure Schedule, IUMA Enerdyne has taken all reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of all IUMA Enerdyne Proprietary Assets (except IUMA Enerdyne Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all IUMA Enerdyne Proprietary Assets. Except as set forth in Section 2.9(b) of the IUMA Enerdyne Disclosure ScheduleSchedule or for portions and components delivered to third parties for interface design and testing purposes, IUMA Enerdyne has not disclosed or delivered to any Persondelivered, or permitted the disclosure of or delivery to any Person Person, other than employees or consultants who have signed confidentiality agreements, the source code or circuit board diagrams, or any portion or aspect of the source code or circuit board diagrams, of any of Enerdyne Product. At the IUMA Proprietary Assets used in or necessary time such portions and components were delivered, Enerdyne did not expect the recipient to become a competitor for the conduct Enerdyne Products incorporating such portions and components and, absent reverse engineering, such portions or components were not sufficient to permit the recipient to develop competitive products. The custom and practice of business by IUMA as currently conducted by IUMAEnerdyne with respect to delivery of such limited portions or components has not changed to any material degree in the last two years. (c) IUMA Enerdyne is not infringing, misappropriating or making any unlawful use of, and IUMA Enerdyne has not at any time infringed, misappropriated or made any unlawful use of, or and Enerdyne has not received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other person ("Third Party Proprietary Asset")Person. No To Enerdyne's knowledge, no other person Person is infringing, misappropriating or making any unlawful use of, and no Third Party Proprietary Asset owned or used by any other person Person infringes or conflicts with, any IUMA Enerdyne Proprietary Asset. (d) Except as set forth in Section 3.9(d2.9(d) of the IUMA Enerdyne Disclosure ScheduleSchedule or to the extent of rework activities in the ordinary course of business in amounts consistent with past practice: (i) each IUMA Proprietary Asset Enerdyne Product conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of IUMA; Enerdyne and (ii) there has not been during the last three years any claim made against IUMA Enerdyne by any customer or other person Person alleging that any IUMA Proprietary Asset Enerdyne Product (including each version thereof that has ever been licensed or otherwise made available by IUMA Enerdyne to any personPerson) does not conform in any all material respect respects with any specification, documentation, performance standard, representation or statement made or provided by or on behalf of IUMAEnerdyne, and and, to Enerdyne's knowledge, there is no not a reasonable basis for any such claim. No product liability or warranty claims which individually or in the aggregate could exceed the reserves therefor on the Enerdyne Financial Statements have been communicated to, or threatened against, Enerdyne. (e) IUMA's The Enerdyne Proprietary Assets constitute all the proprietary assets Proprietary Assets necessary to enable IUMA Enerdyne to conduct its business in the manner in which such business has been and is being conducted. Except as set forth in Section 3.9(e2.9(e) of the IUMA Enerdyne Disclosure Schedule, (i) IUMA Enerdyne has not licensed any of the IUMA Enerdyne Proprietary Assets to any person Person and (ii) IUMA Enerdyne has not entered into any covenant not to compete or contract limiting its ability to exploit fully any of the IUMA Enerdyne Proprietary Assets or to transact business in any market or geographical area or with any personPerson. (f) Except as set forth in Section 2.9(f) of the Enerdyne Disclosure Schedule, (i) all current and former employees of Enerdyne (if employed in the last three years) have executed and delivered to Enerdyne an agreement (containing no exceptions to or exclusions from the scope of its coverage relevant to Enerdyne's business) that is substantially identical to the form of the Confidentiality, Trade Secret and Intangible Assignment Agreement previously delivered to Boatracs, and (ii) all current and former consultants and independent contractors to Enerdyne (if employed in the last three years) providing technical services relating to Enerdyne's Proprietary Assets have executed and delivered to Enerdyne an agreement (containing no exceptions to or exclusions from the scope of its coverage relevant to Enerdyne's business), the material provisions of which are in substance similar to the terms of the form of the Confidentiality, Trade Secret and Intangible Assignment Agreement previously delivered to Boatracs.

Proprietary Rights and Warranty Claims. (a) Section 3.9(a)(i) of the Disclosure Schedule sets forth, with respect to each Proprietary Asset owned or used by IUMA Emusic (each a "IUMA Emusic Proprietary Asset" and collectively, the "IUMA Emusic Proprietary Assets") registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such IUMA Emusic Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Section 3.9(a)(ii) of the IUMA Emusic Disclosure Schedule identifies and provides a brief description of all other IUMA Emusic Proprietary Assets. Section 3.9(a)(iii) of the IUMA Emusic Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to IUMA Emusic by any Person (except for any Proprietary Asset that is licensed to IUMA Emusic under any third party software license generally available to the public at a cost of less than One Thousand Dollars ($1,000)), and identifies the license agreement under which such Proprietary Asset is being licensed to IUMAEmusic. Except as set forth in Section 3.9(a)(iv) of the IUMA Emusic Disclosure Schedule, IUMA Emusic has good, valid and marketable title to all IUMA Emusic Proprietary Assets identified in Sections 3.9(a)(i) and 3.9(a)(ii) of the IUMA Emusic Disclosure Schedule, free and clear of all liens and other encumbrances and of all third party licensed technology, and has a valid right to use all Proprietary Assets identified in Section 3.9(a)(iii) of the IUMA Emusic Disclosure Schedule. Except as set forth in Section 3.9(a)(v) of the IUMA Emusic Disclosure Schedule, IUMA Emusic is not obligated to make any payment to any Person for the use of any Proprietary Asset. Except as set forth in Section 3.9(a)(vi) of the IUMA Emusic Disclosure Schedule, IUMA Emusic has not developed jointly with any other Person any Proprietary Asset with respect to which such other Person has any rights. (b) Except as set forth in Section 3.9(b) of the IUMA Emusic Disclosure Schedule, IUMA Emusic has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of all IUMA Emusic Proprietary Assets (except IUMA Emusic Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all IUMA Emusic Proprietary Assets. Except as set forth in the IUMA Emusic Disclosure Schedule, IUMA Emusic has not disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of any of the IUMA Emusic Proprietary Assets used in or necessary for the conduct of business by IUMA Emusic as currently conducted by IUMAEmusic. (c) IUMA Except as provided in Section 3.9(c) of the Emusic Disclosure Schedule, Emusic is not infringing, misappropriating or making any unlawful use of, and IUMA Emusic has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other person ("Third Party Proprietary Asset"). No other person is infringing, misappropriating or making any unlawful use of, and no Third Party Proprietary Asset owned or used by any other person infringes or conflicts with, any IUMA Emusic Proprietary Asset. (d) Except as set forth in Section 3.9(d) of the IUMA Emusic Disclosure Schedule: (i) each IUMA Emusic Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of IUMAEmusic; and (ii) there has not been any claim made against IUMA Emusic by any customer or other person alleging that any IUMA Emusic Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by IUMA Emusic to any person) does not conform in any material respect with any specification, documentation, performance standard, representation or statement made or provided by or on behalf of IUMAEmusic, and there is no basis for any such claim. (e) IUMAEmusic's Proprietary Assets constitute all the proprietary assets necessary to enable IUMA Emusic to conduct its business in the manner in which such business has been and is being conducted. Except as set forth in Section 3.9(e) of the IUMA Emusic Disclosure Schedule, (i) IUMA Emusic has not exclusively licensed any of the IUMA Emusic Proprietary Assets to any person and (ii) IUMA Emusic has not entered into any covenant not to compete or contract limiting its ability to exploit fully any of the IUMA Emusic Proprietary Assets or to transact business in any market or geographical area or with any person.

Proprietary Rights and Warranty Claims. (a) Section 3.9(a)(i3.8(a)(i) of the Disclosure Schedule sets forth, with respect to each Proprietary Asset owned or used by IUMA QIC (each a "IUMA QIC Proprietary Asset" and collectively, the "IUMA QIC Proprietary Assets") registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description of such IUMA QIC Proprietary Asset, and (ii) the names of the jurisdictions covered by the applicable registration or application. Section 3.9(a)(ii3.8(a)(ii) of the IUMA QIC Disclosure Schedule identifies and provides a brief description of all other IUMA QIC Proprietary Assets. Section 3.9(a)(iii3.8(a)(iii) of the IUMA QIC Disclosure Schedule identifies and provides a brief description of each Proprietary Asset licensed to IUMA QIC by any Person (except for any Proprietary Asset that is licensed to IUMA QIC under any third party software license generally available to the public at a cost of less than One Thousand Dollars ($1,000)), and identifies the license agreement under which such Proprietary Asset is being licensed to IUMAQIC. Except as set forth in Section 3.9(a)(iv3.8(a)(iv) of the IUMA QIC Disclosure Schedule, IUMA QIC has good, valid and marketable title to all IUMA QIC Proprietary Assets identified in Sections 3.9(a)(i3.8(a)(i) and 3.9(a)(ii3.8(a)(ii) of the IUMA QIC Disclosure Schedule, free and clear of all liens and other encumbrances and of all third party licensed technology, and has a valid right to use all Proprietary Assets identified in Section 3.9(a)(iii3.8(a)(iii) of the IUMA QIC Disclosure Schedule. Except as set forth in Section 3.9(a)(v3.8(a)(v) of the IUMA QIC Disclosure Schedule, IUMA QIC is not obligated to make any payment to any Person for the use of any Proprietary Asset. Except as set forth in Section 3.9(a)(vi3.8(a)(vi) of the IUMA QIC Disclosure Schedule, IUMA QIC has not developed jointly with any other Person any Proprietary Asset with respect to which such other Person has any rights. (b) Except as set forth in Section 3.9(b3.8(b) of the IUMA QIC Disclosure Schedule, IUMA QIC has taken reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of all IUMA QIC Proprietary Assets (except IUMA QIC Proprietary Assets whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all IUMA QIC Proprietary Assets. Except as set forth in the IUMA QIC Disclosure Schedule, IUMA QIC has not (other than pursuant to license agreements identified in Section 3.8(b) of the QIC Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of any of the IUMA Proprietary Assets used in or necessary for the conduct of business by IUMA as currently conducted by IUMA. (c) IUMA is not infringing, misappropriating or making any unlawful use of, and IUMA has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset owned or used by any other person ("Third Party Proprietary Asset"). No other person is infringing, misappropriating or making any unlawful use of, and no Third Party Proprietary Asset owned or used by any other person infringes or conflicts with, any IUMA Proprietary Asset. (d) Except as set forth in Section 3.9(d) of the IUMA Disclosure Schedule: (i) each IUMA Proprietary Asset conforms in all material respects with any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of IUMA; and (ii) there has not been any claim made against IUMA by any customer or other person alleging that any IUMA Proprietary Asset (including each version thereof that has ever been licensed or otherwise made available by IUMA to any person) does not conform in any material respect with any specification, documentation, performance standard, representation or statement made or provided by or on behalf of IUMA, and there is no basis for any such claim. (e) IUMA's Proprietary Assets constitute all the proprietary assets necessary to enable IUMA to conduct its business in the manner in which such business has been and is being conducted. Except as set forth in Section 3.9(e) of the IUMA Disclosure Schedule, (i) IUMA has not licensed any of the IUMA Proprietary Assets to any person and (ii) IUMA has not entered into any covenant not to compete or contract limiting its ability to exploit fully any of the IUMA Proprietary Assets or to transact business in any market or geographical area or with any person.the

Proprietary Rights and Warranty Claims. (a) Section 3.9(a)(i) Part 2.4 of the Disclosure Schedule sets forth, with respect to each Proprietary Asset owned or used by IUMA (each a "IUMA Proprietary Asset" and collectively, the "IUMA Proprietary Assets") Right registered with any Governmental Body or for which an application has been filed with any Governmental Body, (i) a brief description list of such IUMA Proprietary AssetRight, and (ii) the names of the jurisdictions covered by the applicable registration or application. Section 3.9(a)(ii) Part 2.4 of the IUMA NCD Disclosure Schedule identifies and provides a brief description of all other IUMA Proprietary Assets. Section 3.9(a)(iii) of the IUMA Disclosure Schedule identifies and provides a brief description of each Proprietary Asset Right licensed to IUMA NCD by any Person (except for any Proprietary Asset Right that is licensed to IUMA NCD under any third party software license generally available to the public at a cost of less than One Thousand Dollars ($1,000)), and identifies the license agreement under which such Proprietary Asset Right is being licensed to IUMANCD. Except as set forth in Section 3.9(a)(iv) Part 2.4 of the IUMA NCD Disclosure Schedule, IUMA has goodNCD has, valid and marketable to the best of NCD's knowledge good title to all IUMA of the Proprietary Assets Rights identified in Sections 3.9(a)(i) and 3.9(a)(ii) Part 2.4 of the IUMA NCD Disclosure Schedule, free and clear of all liens and other encumbrances and of all third party licensed technologyEncumbrances, and has a valid right to use all Proprietary Assets Rights identified in Section 3.9(a)(iii) Part 2.4 of the IUMA NCD Disclosure Schedule. Except as set forth in Section 3.9(a)(v) of the IUMA Disclosure Schedule, IUMA is not obligated to make any payment to any Person for the use of any Proprietary Asset. Except as set forth in Section 3.9(a)(vi) of the IUMA Disclosure Schedule, IUMA has not developed jointly with any other Person any Proprietary Asset with respect to which such other Person has any rights. (b) Except as set forth in Section 3.9(b) Part 2.4 of the IUMA NCD Disclosure Schedule, IUMA NCD has taken all reasonable and customary measures and precautions necessary to protect and maintain the confidentiality and secrecy of all IUMA Proprietary Assets Rights (except IUMA Proprietary Assets Rights whose value would be unimpaired by public disclosure) and otherwise to maintain and protect the value of all IUMA Proprietary AssetsRights. Except as set forth in Part 2.4 of the IUMA NCD Disclosure Schedule, IUMA NCD has not (other than pursuant to license agreements identified in Part 2.4 of the NCD Disclosure Schedule) disclosed or delivered to any Person, or permitted the disclosure or delivery to any Person of, (i) the source code, or any portion or aspect of the source code, of any Proprietary Right, or (ii) the object code, or any portion or aspect of the IUMA object code, of any Proprietary Assets used in or necessary for the conduct of business by IUMA as currently conducted by IUMARight. (c) IUMA To the best of NCD's knowledge in connection with the conduct of the Z-Mail Business, NCD is not infringing, misappropriating or making any unlawful use of, and IUMA NCD has not at any time infringed, misappropriated or made any unlawful use of, or received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, any Proprietary Asset proprietary right owned or used by any other person ("Third Party Proprietary Asset")Person. No To the best of NCD's knowledge, no other person Person is infringing, misappropriating or making any unlawful use of, and no Third Party Proprietary Asset proprietary right owned or used by any other person Person infringes or conflicts with, any IUMA Proprietary AssetRight. (d) Except as set forth in Section 3.9(d) Part 2.4 of the IUMA NCD Disclosure Schedule: (i) each IUMA Proprietary Asset Right conforms in all material respects with substantially to any specification, documentation, performance standard, representation or statement made or provided with respect thereto by or on behalf of IUMANCD; and (ii) there has not been any claim made against IUMA NCD by any customer or other person Person alleging that any IUMA Proprietary Asset Right (including each version thereof that has ever been licensed or otherwise made available by IUMA NCD to any personPerson) does not substantially conform in any material respect with to any specification, documentation, performance standard, representation or statement made or provided by or on behalf of IUMANCD, and and, to the best of NCD's knowledge, there is no basis for any such claim. (e) IUMA's The Proprietary Assets Rights constitute all the proprietary assets necessary Proprietary Rights necessary, in NCD's reasonable judgment, to enable IUMA NCD to conduct its business the Z-Mail Business in the manner in which such business has been and is being conducted. Except as set forth in Section 3.9(e) Part 2.4 of the IUMA NCD Disclosure Schedule, (i) IUMA NCD has not licensed any of the IUMA Proprietary Assets Rights to any person Person on an exclusive basis, and (ii) IUMA NCD has not entered into any covenant not to compete or contract limiting its ability to exploit fully any of the IUMA Proprietary Assets Rights or to transact business in any market or geographical area or with any personPerson. (f) Except as set forth in Part 2.4 of the NCD Disclosure Schedule, (i) all current and former employees of the Z-Mail Business have executed and delivered to NCD an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the forms of Confidential Information and Invention Assignment Agreements previously delivered to NetManage, and (ii) all current and former consultants and independent contractors to the Z-Mail Business have executed and delivered to NCD an agreement (containing no exceptions to or exclusions from the scope of its coverage) that is substantially identical to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered to NetManage.