Technology and Intellectual Property Rights. (i) The "Duck Intellectual Property" consists of the following: all patents, trademarks, trade names, service marks, mask works, domain names, copyrights and any renewal rights, applications and registrations for any of the foregoing, and all trade dress, supplier lists, trade secrets, know-how, moral rights, computer software programs or applications (in both source and object code form) owned by Duck; C all goodwill associated with trademarks, trade names service marks and trade dress owned by Duck; D all software and firmware listings, and updated software source code, and complete system build software and instructions related to all software described herein owned by Duck; E all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein owned by Duck; F all other tangible or intangible proprietary information and materials owned by Duck; and G all license and other rights in any third party product, intellectual property, proprietary or personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property and tangible and intangible proprietary information described in (A) through (E) above that are being, and/or have been, used, or are currently under development for use, in the business of Duck as it has been, is currently or is currently anticipated to be (up to the Closing), conducted. Duck Intellectual Property described in clauses (A) to (E) above is referred to herein as "Duck Owned Intellectual Property" and Duck Intellectual Property described in clause (F) above is referred to herein as "Duck Licensed Intellectual Property." Unless otherwise noted, all references to "Duck Intellectual Property" shall refer to both Duck Owned Intellectual Property and Duck Licensed Intellectual Property. (ii) SCHEDULE 3.01(f) lists: (i) all patents, registered copyrights, trademarks, service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in the Duck Owned Intellectual Property; (ii) all hardware products and tools, software products and tools, and services that are currently published, offered, or under development by Duck; (iii) all material licenses, sublicenses and other agreements to which Duck is a party and pursuant to which any other person is authorized to have access to or use the Duck Owned Intellectual Property or exercise any other right with regard thereto; and (iv) all Duck Licensed Intellectual Property (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by Duck). The disclosures described in (iii), (iv) and (v) hereof include the names and dates of the relevant agreements, as well as the identities of the parties thereto. (iii) The Duck Intellectual Property consists solely of items and rights that are either: (i) owned by Duck, (ii) in the public domain, or (iii) rightfully used and authorized for use by Duck and its successors pursuant to a valid license or other agreement. Duck has all rights in the Duck Intellectual Property reasonably necessary to carry out Duck's current, and anticipated future (up to the Closing) activities and has or had all rights in the Duck Intellectual Property reasonably necessary to carry out Duck's former activities, including without limitation, if necessary to carry out such activities, rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign, and sell the Duck Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. All material software and firmware listings that are part of the Duck Owned Intellectual Property are adequately commented in accordance with current software industry standards. (iv) Duck is not, nor as a result of the execution or delivery of this Agreement, or performance of Duck's obligations hereunder, will Duck be, in violation of any license, sublicense or other agreement relating to the Duck Intellectual Property to which Duck is a party or otherwise bound. Except pursuant to the terms of the agreements listed in on SCHEDULE 3.01(f), Duck is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Duck or its successors in the Duck Intellectual Property. (v) To the knowledge of Duck, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Owned Intellectual Property or any other authorized exercise of rights in or to the Duck Owned Intellectual Property by Duck or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, to the knowledge of Duck, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Licensed Intellectual Property or any other authorized exercise of rights in or to the Duck Licensed Intellectual Property by Duck or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Except as set forth on SCHEDULE 3.01(f), no claims (i) challenging the validity, effectiveness, or ownership by Duck of any of the Duck Owned Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale or any other exercise of rights in any Duck Owned Intellectual Property by Duck or its licensees infringes, or will infringe on, any intellectual property or other proprietary or personal right of any person, have been asserted or, to the knowledge of Duck, are threatened by any person nor, to the knowledge of Duck, are there any valid grounds for any bona fide claim of any such kind. All granted or issued patents and mask works and all registered trademarks listed on the Duck Disclosure Schedule and all copyright registrations held by Duck are valid, enforceable and subsisting. To the knowledge of Duck, there is no material unauthorized use, infringement or misappropriation of any of the Duck Owned Intellectual Property by any third party, employee or former employee. (vi) Except as set forth on SCHEDULE 3.01(f), no parties other than Duck possess any current or contingent rights to any source code that is part of the Duck Owned Intellectual Property (including, without limitation, through any escrow account). (vii) SCHEDULE 3.01(f) lists all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Owned Intellectual Property other than employees of Duck whose work product was created by them entirely within the scope of their employment by Duck and constitutes works made for hire owned by Duck. Duck has secured from all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to Duck and has provided true and complete copies of such assignments or licenses to Parent. (viii) SCHEDULE 3.01(f) includes a true and complete list of support and maintenance agreements relating to Duck Owned Intellectual Property or to which Duck is a party as to Duck Licensed Intellectual Property including the identity of the parties and the respective dates of such agreements and remedies for their breach. (ix) Duck has obtained legally binding written agreements from all employees and third parties with whom Duck has shared confidential proprietary information (i) of Duck, or (ii) received from others which Duck is obligated to treat as confidential, which agreements require such employees and third parties to keep such information confidential. (x) Duck has obtained any and all necessary consents from consumers with regard to Duck's collection and dissemination of personal consumer information in accordance with Duck's privacy policy as published on its website. Duck's practices regarding the collection and use of consumer personal information are in accordance with Duck's privacy policy as published on its website. (xi) To the knowledge of Duck, the Duck Owned Intellectual Property is, and any products manufactured and commercially released by Duck or currently under development, are fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. To the best of Duck's knowledge, the Duck Licensed Intellectual Property is fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. SCHEDULE 3.01(f) sets forth the tests, inquiries and other activities undertaken by Duck up to Closing, with respect to the Year 2000 Compliant nature of any and all Duck Licensed Intellectual Property. For the purposes of this Agreement, "Year 2000 Compliant" means that neither the performance nor the functionality of the applicable Duck Intellectual Property or applicable product is or will be materially affected by dates prior to, during or after the calendar year 2000 and in particular (but without limitation): A such Duck Intellectual Property or product accurately receives, provides and processes, and will accurately receive, provide and process, date/time data (including calculating, comparing and sequencing) from, into and between the twentieth and twenty-first centuries including calendar years 1999 and 2000; B such Duck Intellectual Property or product will not malfunction, cease to function, provide invalid or incorrect results or cause any interruption in the operation of the business of Duck as a result of any date/time dat C data-based functionality of such Duck Intellectual Property or product behaves and will continue to behave consistently for dates prior to, during and after the year 2000; D in all interfaces and data storage of such Duck Intellectual Property or product, the century in any date is and will be specified either explicitly or by unambiguous algorithms or inferencing rules; and E the year 2000 is and will be recognized as a leap year of such Duck Intellectual Property or product.
Appears in 1 contract
Samples: Merger Agreement (On2com Inc)
Technology and Intellectual Property Rights. (ia) The "Duck Intellectual PropertyDMI INTELLECTUAL PROPERTY" consists of the following: :
(i) all patents, trademarks, trade names, service marks, mask works, domain names, copyrights and any renewal rights, applications and registrations for any of the foregoing, and all trade dress, net lists, schematics, technology, manufacturing processes, supplier lists, trade secrets, know-how, moral rights, computer software programs or applications (in both source and object code form) owned by Duck; C DMI;
(ii) all goodwill associated with trademarks, trade names service marks and trade dress owned by Duck; D DMI;
(iii) all software and firmware listings, and updated software source code, and complete system build software and instructions related to all software described herein owned by Duck; E DMI;
(iv) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein owned by DuckDMI; F (v) all other tangible or intangible proprietary information and materials owned by DuckDMI; and G and
(vi) all license and other rights in any third party product, intellectual property, proprietary or personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property and tangible and intangible proprietary information described in (Ai) through (Ev) above above; that are being, and/or have been, used, or are currently under development for use, in the business of Duck DMI as it has been, is currently or is currently anticipated to be (up to the Closing), conducted. Duck DMI Intellectual Property described in clauses (Ai) to (Ev) above is referred to herein as "Duck Owned Intellectual PropertyDMI OWNED INTELLECTUAL PROPERTY" and Duck DMI Intellectual Property described in clause (Fvi) above is referred to herein as "Duck Licensed Intellectual Property." DMI LICENSED INTELLECTUAL PROPERTY". Unless otherwise noted, all references to "Duck DMI Intellectual Property" shall refer to both Duck DMI Owned Intellectual Property and Duck DMI Licensed Intellectual Property.
(iib) SCHEDULE 3.01(f) The DMI Disclosure Schedule lists: (i) all patents, registered copyrights, mask works, trademarks, service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in the Duck DMI Owned Intellectual Property; (ii) all hardware products and tools, software products and tools, and services that are currently published, offered, or under development by DuckDMI; (iii) all material licenses, sublicenses and other agreements to which Duck DMI is a party and pursuant to which any other person is authorized to have access to or use the Duck DMI Owned Intellectual Property or exercise any other right with regard thereto; and (iv) all Duck DMI Licensed Intellectual Property (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by Duckthe DMI). The disclosures described in (iii), (iv) ; and (v) hereof include any obligations of exclusivity, noncompetition, nonsolicitation, or first negotiation to which DMI is subject under any agreement that does not fall within the names and dates ambit of the relevant agreements, as well as the identities of the parties thereto(iii) or (iv) above.
(iiic) The Duck DMI Intellectual Property consists solely of items and rights that are either: (i) owned by DuckDMI, (ii) in the public domain, or (iii) rightfully used and authorized for use by Duck DMI and its successors pursuant to a valid license or other agreement. Duck DMI has all rights in the Duck DMI Intellectual Property reasonably necessary to carry out DuckDMI's current, and anticipated future (up to the Closing) activities and has or had all rights in the Duck DMI Intellectual Property reasonably necessary to carry out DuckDMI's former activities, including without limitation, if necessary to carry out such activities, rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign, and sell the Duck DMI Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. All material software and firmware listings that are part of the Duck DMI Owned Intellectual Property are adequately commented in accordance with current software industry standards.
(ivd) Duck DMI is not, nor as a result of the execution or delivery of this Agreement, or performance of DuckDMI's obligations hereunder, will Duck DMI be, in violation of any license, sublicense or other agreement relating to the Duck DMI Intellectual Property to which Duck DMI is a party or otherwise bound. Except pursuant to the terms of the agreements listed in on SCHEDULE 3.01(f)the DMI Disclosure Schedule, Duck DMI is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Duck DMI or its successors in the Duck DMI Intellectual Property.
(ve) To The use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any DMI Owned Intellectual Property or any other authorized exercise of rights in or to the DMI Owned Intellectual Property by DMI or its licensees does not and, and to DMI's knowledge, will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, mask work, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, to the knowledge of DuckDMI, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Owned DMI Licensed Intellectual Property or any other authorized exercise of rights in or to the Duck Owned DMI Licensed Intellectual Property by Duck DMI or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, to the knowledge of Duck, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Licensed Intellectual Property or any other authorized exercise of rights in or to the Duck Licensed Intellectual Property by Duck or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dressmask work, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Except as set forth on SCHEDULE 3.01(f), no No claims (i) challenging the validity, effectiveness, or ownership by Duck DMI of any of the Duck DMI Owned Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale or any other exercise of rights in any Duck DMI Owned Intellectual Property by Duck DMI or its licensees infringes, or will infringe on, any intellectual property or other proprietary or personal right of any person, have been asserted or, to the knowledge of DuckDMI, are threatened by any person nor, to the knowledge of DuckDMI, are there any valid grounds for any bona fide claim of any such kind. All granted or issued patents and mask works and all registered trademarks listed on the Duck DMI Disclosure Schedule and all copyright registrations held by Duck DMI are valid, enforceable and subsisting. To the knowledge of DuckDMI, there is no material unauthorized use, infringement or misappropriation of any of the Duck DMI Owned Intellectual Property by any third party, employee or former employee.
(vif) Except as set forth on SCHEDULE 3.01(f), no No parties other than Duck DMI possess any current or contingent rights to any source code that is part of the Duck DMI Owned Intellectual Property (including, without limitation, through any escrow account).
(viig) SCHEDULE 3.01(f) The DMI Disclosure Schedule lists all parties who have created any material portion of, or otherwise have any rights in or to, the Duck DMI Owned Intellectual Property other than employees of Duck DMI whose work product was created by them entirely within the scope of their employment by Duck DMI and constitutes works made for hire owned by DuckDMI. Duck DMI has secured from all parties who have created any material portion of, or otherwise have any rights in or to, the Duck DMI Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to Duck DMI and has provided true and complete copies of such assignments or licenses to ParentOnHealth.
(viiih) SCHEDULE 3.01(f) The DMI Disclosure Schedule includes a true and complete list of support and maintenance agreements relating to Duck DMI Owned Intellectual Property or to which Duck DMI is a party as to Duck DMI Licensed Intellectual Property including the identity of the parties and the respective dates of such agreements and remedies for their breach.
(ixi) Duck DMI has obtained legally binding written agreements from all employees and third parties with whom Duck DMI has shared confidential proprietary information (i) of DuckDMI, or (ii) received from others which Duck DMI is obligated to treat as confidential, which agreements require such employees and third parties to keep such information confidential.
(xj) Duck DMI has obtained any and all necessary consents from consumers with regard to Duckthe DMI's collection and dissemination of personal consumer information in accordance with DuckDMI's privacy policy as published on its website. Duck's practices regarding the collection and use of consumer personal information are in accordance with Duck's privacy policy as published on its website.
(xi) To the knowledge of Duck, the Duck Owned Intellectual Property is, and any products manufactured and commercially released by Duck or currently under development, are fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. To the best of Duck's knowledge, the Duck Licensed Intellectual Property is fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. SCHEDULE 3.01(f) sets forth the tests, inquiries and other activities undertaken by Duck up to Closing, with respect to the Year 2000 Compliant nature of any and all Duck Licensed Intellectual Property. For the purposes of this Agreement, "Year 2000 Compliant" means that neither the performance nor the functionality of the applicable Duck Intellectual Property or applicable product is or will be materially affected by dates prior to, during or after the calendar year 2000 and in particular (but without limitation): A such Duck Intellectual Property or product accurately receives, provides and processes, and will accurately receive, provide and process, date/time data (including calculating, comparing and sequencing) from, into and between the twentieth and twenty-first centuries including calendar years 1999 and 2000; B such Duck Intellectual Property or product will not malfunction, cease to function, provide invalid or incorrect results or cause any interruption in the operation of the business of Duck as a result of any date/time dat C data-based functionality of such Duck Intellectual Property or product behaves and will continue to behave consistently for dates prior to, during and after the year 2000; D in all interfaces and data storage of such Duck Intellectual Property or product, the century in any date is and will be specified either explicitly or by unambiguous algorithms or inferencing rules; and E the year 2000 is and will be recognized as a leap year of such Duck Intellectual Property or product.its
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Onhealth Network Co)
Technology and Intellectual Property Rights. (ia) The As used in this Section 4.15, "Duck Company Intellectual Property" consists of the following: :
(i) all inventions, patents, trademarks, trade names, service marks, mask works, domain names, original works of authorship, copyrights and any renewal rights, applications and registrations for any of the foregoing, and all trade dress, schematics, technology, manufacturing processes, supplier lists, trade secrets, know-how, moral rights, computer software programs or applications (as applicable, in both source and object code form) owned in whole or in part by Duck; C the Company or any Company Subsidiary;
(ii) all goodwill associated with trademarks, trade names service marks and trade dress owned in whole or in part by Duck; D the Company or any Company Subsidiary;
(iii) all software and firmware listingssoftware, and updated software including without limitation, all source code, object code and complete system build software and instructions related to all software described herein owned in whole or in part by Duck; E the Company or any Company Subsidiary;
(iv) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein owned in whole or in part by Duck; F the Company or any Company Subsidiary;
(v) all other tangible or intangible proprietary information and materials owned in whole or in part by Duckthe Company or any Company Subsidiary; and G and
(vi) all license and other rights held by the Company or any Company Subsidiary in any third party product, intellectual property, proprietary or personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property and tangible and intangible proprietary information described in (Ai) through (Ev) above above; that are being, and/or have been, used, or are currently under development for use, in the business of Duck as it has been, is currently or is currently anticipated also Assets being transferred pursuant to be (up to the Closing), conductedthis Agreement. Duck Company Intellectual Property described in clauses (Ai) to (Ev) above is referred to herein as "Duck Company Owned Intellectual Property" and Duck the Company Intellectual Property described in clause (Fvi) above is referred to herein as "Duck Company Licensed Intellectual Property." Unless otherwise noted, all references to "Duck Company Intellectual Property" shall refer to both Duck Company Owned Intellectual Property and Duck Company Licensed Intellectual Property.
(iib) SCHEDULE 3.01(f) Section 4.15 of the Transferred Divisions Disclosure Schedule lists: (i) all patents, registered copyrights, trademarksmask works, registered and material unregistered trademarks and service marks, trade dress, any renewal rights for any of the foregoing, marks and any applications and registrations for any of the foregoing, that are included in the Duck Company Owned Intellectual Property; (ii) all hardware products and tools, software products and tools, and services that are currently published, offered, or under development by Duck; (iii) all material licenses, sublicenses and other agreements to which Duck the Company or any Company Subsidiary is a party and pursuant to which any other person is authorized to have access to or use the Duck Company Owned Intellectual Property or exercise any other right with regard theretothereto (except standard form, unmodified end user license agreements as they existed from time to time and dealer/distributor agreements for the Company's and the Company Subsidiaries' commercially distributed products, entered into between the Company or any Company Subsidiary and the end users of the Company products in the ordinary course of business); and (iviii) all Duck material Company Licensed Intellectual Property (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by Duckthe Company or any Company Subsidiary but including any software tools or "open source" licenses). The disclosures described in (iii), (iv) and (v) hereof include the names and dates of the relevant agreements, as well as the identities of the parties thereto.
(iiic) The Duck Company Intellectual Property consists solely of items and rights that are either: (i) owned by Duckthe Company or any Company Subsidiary, (ii) in the public domain, or (iii) rightfully used and authorized for use by Duck the Company or any Company Subsidiary and its their successors pursuant to a valid license or other agreement. Duck has The Company and each of the Company Subsidiaries have all rights in the Duck Company Intellectual Property reasonably necessary to carry out Duckthe Company's current, and anticipated future (up to the Closing) each Company Subsidiaries' current activities and has or had all rights in the Duck Company Intellectual Property reasonably necessary to carry out Duckthe Company's and each Company Subsidiaries' former activities, including without limitation, if necessary to carry out such activities, rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign, and sell the Duck Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. All material software and firmware listings that are part of the Duck Owned Intellectual Property are adequately commented in accordance with current software industry standards.
(ivd) Duck is The Company and the Company Subsidiaries are not, nor as a result of the execution or delivery of this Agreement, or performance of Duckthe Company's obligations hereunder, will Duck the Company or any Company Subsidiary be, in violation of any license, sublicense or other agreement relating to the Duck Company Intellectual Property to which Duck the Company or any Company Subsidiary is a party or otherwise bound. Except pursuant to the terms of the agreements listed in on SCHEDULE 3.01(f)the Transferred Divisions Disclosure Schedule, Duck is the Company and the Company Subsidiaries are not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any considerationconsideration from the Company or any Company Subsidiary, with respect to any exercise of rights by Duck the Company or its any Company Subsidiary or their successors in the Duck Company Intellectual Property.
(ve) To the knowledge of Duck, the The use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Company Owned Intellectual Property or any other authorized exercise of rights in or to the Duck Company Owned Intellectual Property by Duck the Company or its any Company Subsidiary or their licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, to the knowledge of Duck, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Licensed Intellectual Property or any other authorized exercise of rights in or to the Duck Licensed Intellectual Property by Duck or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dressmask work, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Except as set forth on SCHEDULE 3.01(f), no No claims (i) challenging the validity, effectiveness, or ownership by Duck the Company or any Company Subsidiary of any of the Duck Company Owned Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale or any other exercise of rights in any Duck Company Owned Intellectual Property by Duck the Company or its any Company Subsidiary or their licensees infringes, or will infringe on, any intellectual property or other proprietary or personal right of any person, have been asserted or, to the knowledge of DuckCompany, are threatened by any person nor, to the knowledge of DuckCompany, are there any valid grounds for any bona fide claim of any such kind. All granted or issued patents and mask works and all registered trademarks listed on the Duck Transferred Divisions Disclosure Schedule and all copyright registrations held by Duck the Company or any Company Subsidiary are valid, enforceable and subsisting. To the knowledge of Duckthe Company, there is no material unauthorized use, infringement or misappropriation of any of the Duck Company Owned Intellectual Property by any third party, employee or former employee.
(vif) Except as set forth on SCHEDULE 3.01(f)in Section 4.15(f) of the Transferred Divisions Disclosure Schedule, no parties other than Duck the Company or any Company Subsidiary possess any current or contingent rights to any source code that is part of the Duck Company Owned Intellectual Property (including, without limitation, through any escrow account).
(viig) SCHEDULE 3.01(fSection 4.15(g) of the Transferred Divisions Disclosure Schedule lists all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Company Owned Intellectual Property other than employees of Duck the Company and any Company Subsidiary whose work product was created by them entirely within the scope of their employment by Duck the Company or any Company Subsidiary. The Company and constitutes works made for hire owned by Duck. Duck has the Company Subsidiaries have secured from all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Company Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to Duck the Company and has the Company Subsidiaries and have provided Purchaser access to true and complete copies of such assignments or licenses to Parentlicenses.
(viiih) SCHEDULE 3.01(fSection 4.15(h) of the Transferred Divisions Disclosure Schedule includes a true and complete list of all support and or maintenance agreements relating to Duck Company Owned Intellectual Property or to which Duck the Company or any Company Subsidiary is a party as to Duck Company Licensed Intellectual Property including the identity of the parties and the respective dates of such agreements and remedies for their breachProperty.
(ixi) Duck has obtained legally binding Except as set forth in Section 4.15(i) of the Transferred Divisions Disclosure Schedule, the Company and the Company Subsidiaries have entered into written agreements from all with employees and third parties with whom Duck the Company or any Company Subsidiary has shared confidential proprietary information (i) of Duckshared material confidential or proprietary information concerning the Assets or the Product Lines businesses, or (ii) received from others confidential or proprietary information which Duck the Company or any Company Subsidiary is obligated to treat as confidential, which agreements the Assumed Contracts require such employees and third parties to keep such information confidential.
(x) Duck has obtained any and all necessary consents from consumers with regard to Duck's collection and dissemination of personal consumer information confidential in accordance with Duck's privacy policy as published on its website. Duck's practices regarding the collection and use of consumer personal information are in accordance with Duck's privacy policy as published on its websitetheir terms.
(xi) To the knowledge of Duck, the Duck Owned Intellectual Property is, and any products manufactured and commercially released by Duck or currently under development, are fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. To the best of Duck's knowledge, the Duck Licensed Intellectual Property is fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. SCHEDULE 3.01(f) sets forth the tests, inquiries and other activities undertaken by Duck up to Closing, with respect to the Year 2000 Compliant nature of any and all Duck Licensed Intellectual Property. For the purposes of this Agreement, "Year 2000 Compliant" means that neither the performance nor the functionality of the applicable Duck Intellectual Property or applicable product is or will be materially affected by dates prior to, during or after the calendar year 2000 and in particular (but without limitation): A such Duck Intellectual Property or product accurately receives, provides and processes, and will accurately receive, provide and process, date/time data (including calculating, comparing and sequencing) from, into and between the twentieth and twenty-first centuries including calendar years 1999 and 2000; B such Duck Intellectual Property or product will not malfunction, cease to function, provide invalid or incorrect results or cause any interruption in the operation of the business of Duck as a result of any date/time dat C data-based functionality of such Duck Intellectual Property or product behaves and will continue to behave consistently for dates prior to, during and after the year 2000; D in all interfaces and data storage of such Duck Intellectual Property or product, the century in any date is and will be specified either explicitly or by unambiguous algorithms or inferencing rules; and E the year 2000 is and will be recognized as a leap year of such Duck Intellectual Property or product.
Appears in 1 contract
Samples: Asset Purchase Agreement (Eagle Point Software Corp)
Technology and Intellectual Property Rights. (ia) The As used in this Section 4.15, "Duck Company Intellectual Property" consists of the following: :
(i) all inventions, patents, trademarks, trade names, service marks, mask works, domain names, original works of authorship, copyrights and any renewal rights, applications and registrations for any of the foregoing, and all trade dress, schematics, technology, manufacturing processes, supplier lists, trade secrets, know-how, moral rights, computer software programs or applications (as applicable, in both source and object code form) owned in whole or in part by Duck; C the Company or any Company Subsidiary;
(ii) all goodwill associated with trademarks, trade names service marks and trade dress owned in whole or in part by Duck; D the Company or any Company Subsidiary;
(iii) all software and firmware listingssoftware, and updated software including without limitation source code, object code and complete system build software and instructions related to all software described herein owned in whole or in part by Duck; E the Company or any Company Subsidiary;
(iv) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein owned in whole or in part by Duck; F the Company or any Company Subsidiary;
(v) all other tangible or intangible proprietary information and materials owned in whole or in part by Duckthe Company or any Company Subsidiary; and G and
(vi) all license and other rights held by the Company or any Company Subsidiary in any third party product, intellectual property, proprietary or personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property and tangible and intangible proprietary information described in (Ai) through (Ev) above above; that are being, and/or have been, used, or are currently under development for use, in the business of Duck the Company or any Company Subsidiary as it has been, is currently or is currently anticipated to be (up to the Closing), conducted. Duck Company Intellectual Property described in clauses (Ai) to (Ev) above is referred to herein as "Duck Company Owned Intellectual Property" and Duck the Company Intellectual Property described in clause (Fvi) above is referred to herein as "Duck Company Licensed Intellectual Property." Unless otherwise noted, all references to "Duck Company Intellectual Property" shall refer to both Duck Company Owned Intellectual Property and Duck Company Licensed Intellectual Property.
(iib) SCHEDULE 3.01(f) Section 4.15 of the Company Disclosure Schedule lists: (i) all patents, registered copyrights, trademarksmask works, registered and material unregistered trademarks and service marks, trade dress, any renewal rights for any of the foregoing, marks and any applications and registrations for any of the foregoing, that are included in the Duck Company Owned Intellectual Property; (ii) all hardware products and tools, software products and tools, and services that are currently published, offered, or under development by Duck; (iii) all material licenses, sublicenses and other agreements to which Duck the Company or any Company Subsidiary is a party and pursuant to which any other person is authorized to have access to or use the Duck Company Owned Intellectual Property or exercise any other right with regard theretothereto (except standard form, unmodified end user license agreements in the forms that have existed from time to time and dealer/distributor agreements for the Company's and the Company Subsidiaries' commercially distributed products, entered into between the Company or any Company Subsidiary and the end users of the Company products in the ordinary course of business); and (iviii) all Duck material Company Licensed Intellectual Property (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by Duckthe Company or any Company Subsidiary but including any software tools or "open source" licenses). The disclosures described in (iii), ; and (iv) and (v) hereof include any obligations of exclusivity, noncompetition, nonsolicitation, right of first refusal or first negotiation to which the names and dates of the relevant agreements, as well as the identities of the parties theretoCompany or any Company Subsidiary is subject.
(iiic) The Duck Company Intellectual Property consists solely of items and rights that are either: (i) owned by Duckthe Company or any Company Subsidiary, (ii) in the public domain, or (iii) rightfully used and authorized for use by Duck the Company or any Company Subsidiary and its their successors pursuant to a valid license or other agreement. Duck has The Company and each of the Company Subsidiaries have all rights in the Duck Company Intellectual Property reasonably necessary to carry out Duckthe Company's current, and anticipated future (up to the Closing) each Company Subsidiaries' current activities and has or had all rights in the Duck Company Intellectual Property reasonably necessary to carry out Duckthe Company's and each Company Subsidiaries' former activities, including without limitation, if necessary to carry out such activities, rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign, and sell the Duck Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. All material software and firmware listings that are part of the Duck Owned Intellectual Property are adequately commented in accordance with current software industry standards.
(ivd) Duck is The Company and the Company Subsidiaries are not, nor as a result of the execution or delivery of this Agreement, or performance of Duckthe Company's obligations hereunder, will Duck the Company or any Company Subsidiary be, in violation of any license, sublicense or other agreement relating to the Duck Company Intellectual Property to which Duck the Company or any Company Subsidiary is a party or otherwise bound. Except pursuant to the terms of the agreements listed in on SCHEDULE 3.01(f)the Company Disclosure Schedule, Duck is the Company and the Company Subsidiaries are not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any considerationconsideration from the Company or any Company Subsidiary, with respect to any exercise of rights by Duck the Company or its any Company Subsidiary or their successors in the Duck Company Intellectual Property.
(ve) To the knowledge of Duck, the The use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Company Owned Intellectual Property or any other authorized exercise of rights in or to the Duck Company Owned Intellectual Property by Duck the Company or its any Company Subsidiary or their licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, to the knowledge of Duck, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Licensed Intellectual Property or any other authorized exercise of rights in or to the Duck Licensed Intellectual Property by Duck or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dressmask work, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Except as set forth on SCHEDULE 3.01(f), no No claims (i) challenging the validity, effectiveness, or ownership by Duck the Company or any Company Subsidiary of any of the Duck Company Owned Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale or any other exercise of rights in any Duck Company Owned Intellectual Property by Duck the Company or its any Company Subsidiary or their licensees infringes, or will infringe on, any intellectual property or other proprietary or personal right of any person, have been asserted or, to the knowledge of DuckCompany, are threatened by any person nor, to the knowledge of DuckCompany, are there any valid grounds for any bona fide claim of any such kind. All granted or issued patents and mask works and all registered trademarks listed on the Duck Company Disclosure Schedule and all copyright registrations held by Duck the Company or any Company Subsidiary are valid, enforceable and subsisting. To the knowledge of Duckthe Company, there is no material unauthorized use, infringement or misappropriation of any of the Duck Company Owned Intellectual Property by any third party, employee or former employee.
(vif) Except as set forth on SCHEDULE 3.01(f)in Section 4.15(f) of the Company Disclosure Schedule, no parties other than Duck the Company or any Company Subsidiary possess any current or contingent rights to any source code that is part of the Duck Company Owned Intellectual Property (including, without limitation, through any escrow account).
(viig) SCHEDULE 3.01(fSection 4.15(g) of the Company Disclosure Schedule lists all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Company Owned Intellectual Property other than employees of Duck the Company and any Company Subsidiary whose work product was created by them entirely within the scope of their employment by Duck the Company or any Company Subsidiary. The Company and constitutes works made for hire owned by Duck. Duck has the Company Subsidiaries have secured from all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Company Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to Duck the Company and has the Company Subsidiaries and have provided Parent access to true and complete copies of such assignments or licenses to Parentlicenses.
(viiih) SCHEDULE 3.01(fSection 4.15(h) of the Company Disclosure Schedule includes a true and complete list of all support and or maintenance agreements relating to Duck Company Owned Intellectual Property or to which Duck the Company or any Company Subsidiary is a party as to Duck Company Licensed Intellectual Property including the identity Property, as of the parties and date set forth on such schedule (which shall not be more than five business days prior to the respective dates date of such agreements and remedies for their breachthis Agreement).
(ixi) Duck has obtained legally binding Except as set forth in Section 4.15(i) of the Company Disclosure Schedule, the Company and the Company Subsidiaries have entered into written agreements from all with employees and third parties with whom Duck the Company or any Company Subsidiary has shared confidential proprietary information (i) shared material confidential or proprietary information of Duckthe Company or any Company Subsidiary, or (ii) received from others confidential or proprietary information which Duck the Company or any Company Subsidiary is obligated to treat as confidential, which agreements require such employees and third parties to keep such information confidential.
(x) Duck has obtained any and all necessary consents from consumers with regard to Duck's collection and dissemination of personal consumer information confidential in accordance with Duck's privacy policy as published on its websitetheir terms. Duck's practices regarding the collection The Company has provided Parent with access to true and use correct copies of consumer personal information are in accordance with Duck's privacy policy as published on its websiteall such written agreements.
(xi) To the knowledge of Duck, the Duck Owned Intellectual Property is, and any products manufactured and commercially released by Duck or currently under development, are fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. To the best of Duck's knowledge, the Duck Licensed Intellectual Property is fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. SCHEDULE 3.01(f) sets forth the tests, inquiries and other activities undertaken by Duck up to Closing, with respect to the Year 2000 Compliant nature of any and all Duck Licensed Intellectual Property. For the purposes of this Agreement, "Year 2000 Compliant" means that neither the performance nor the functionality of the applicable Duck Intellectual Property or applicable product is or will be materially affected by dates prior to, during or after the calendar year 2000 and in particular (but without limitation): A such Duck Intellectual Property or product accurately receives, provides and processes, and will accurately receive, provide and process, date/time data (including calculating, comparing and sequencing) from, into and between the twentieth and twenty-first centuries including calendar years 1999 and 2000; B such Duck Intellectual Property or product will not malfunction, cease to function, provide invalid or incorrect results or cause any interruption in the operation of the business of Duck as a result of any date/time dat C data-based functionality of such Duck Intellectual Property or product behaves and will continue to behave consistently for dates prior to, during and after the year 2000; D in all interfaces and data storage of such Duck Intellectual Property or product, the century in any date is and will be specified either explicitly or by unambiguous algorithms or inferencing rules; and E the year 2000 is and will be recognized as a leap year of such Duck Intellectual Property or product.
Appears in 1 contract
Technology and Intellectual Property Rights. (ia) The "Duck Company Intellectual Property" consists of the following: :
(i) all patents, trademarks, trade names, service marks, mask works, domain names, copyrights and any renewal rights, applications and registrations for any of the foregoing, and all trade dress, net lists, schematics, technology, manufacturing processes, supplier lists, trade secrets, know-how, moral rights, computer software programs or applications (in both source and object code form) owned by Duck; C Company;
(ii) all goodwill associated with trademarks, trade names service marks and trade dress owned by Duck; D Company;
(iii) all software and firmware listings, and updated software source code, and complete system build software and instructions related to all software described herein owned by Duck; E Company;
(iv) all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein owned by Duck; F Company;
(v) all other tangible or intangible proprietary information and materials owned by DuckCompany; and G and
(vi) all license and other rights in any third party product, intellectual property, proprietary or personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property and tangible and intangible proprietary information described in (Ai) through (Ev) above above; that are being, and/or have been, used, or are currently under development for use, in the business of Duck Company as it has been, is currently or is currently anticipated to be (up to the Closing), conducted. Duck Company Intellectual Property described in clauses (Ai) to (Ev) above is referred to herein as "Duck Company Owned Intellectual Property" and Duck Company Intellectual Property described in clause (Fvi) above is referred to herein as "Duck Company Licensed Intellectual Property." ". Unless otherwise noted, all references to "Duck Company Intellectual Property" shall refer to both Duck Company Owned Intellectual Property and Duck Company Licensed Intellectual Property.
(iib) SCHEDULE 3.01(f) The Company Disclosure Schedule lists: (i) all patents, registered copyrights, mask works, trademarks, service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in the Duck Company Owned Intellectual Property; (ii) all hardware products and tools, software products and tools, and services that are currently published, offered, or under development by DuckCompany; (iii) all material licenses, sublicenses and other agreements to which Duck Company is a party and pursuant to which any other person is authorized to have access to or use the Duck Company Owned Intellectual Property or exercise any other right with regard thereto; and (iv) all Duck Company Licensed Intellectual Property (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by Duckthe Company). The disclosures described in (iii), (iv) ; and (v) hereof include any obligations of exclusivity, noncompetition, nonsolicitation, or first negotiation with respect to Company Intellectual Property to which Company is subject under any agreement that does not fall within the names and dates ambit of the relevant agreements, as well as the identities of the parties thereto(iii) or (iv) above.
(iiic) The Duck Company Intellectual Property consists solely of items and rights that are either: (i) owned by DuckCompany, (ii) in the public domain, or (iii) rightfully used and authorized for use by Duck Company and its successors pursuant to a valid license or other agreement. Duck Company has all rights in the Duck Company Intellectual Property reasonably necessary to carry out DuckCompany's current, and and, to the knowledge of the Company, anticipated future (up to the Closing) activities and has or had all rights in the Duck Company Intellectual Property reasonably necessary to carry out DuckCompany's former activities, including without limitation, if necessary to carry out such activities, rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign, and sell the Duck Company Owned Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. All material software and firmware listings that are part of the Duck Owned Intellectual Property are adequately commented in accordance with current software industry standards.
(ivd) Duck Company is not, nor as a result of the execution or delivery of this Agreement, or performance of DuckCompany's obligations hereunder, will Duck Company be, in a material violation of any license, sublicense or other agreement relating to the Duck Company Intellectual Property to which Duck Company is a party or otherwise bound. Except pursuant to the terms of the agreements listed in on SCHEDULE 3.01(f)the Company Disclosure Schedule, Duck Company is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Duck Company or its successors in the Duck Company Intellectual Property.
(ve) To the knowledge of Duck, the The use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Company Owned Intellectual Property by Company and its Licensees or any other authorized exercise of rights in or to the Duck Company Owned Intellectual Property by Duck Company or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, mask work, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, to the knowledge of Duck, the authorized use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Company Licensed Intellectual Property by Company or its licensees or any other authorized exercise of rights in or to the Duck Company Licensed Intellectual Property by Duck Company or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, mask work, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Except as set forth on SCHEDULE 3.01(f), no No claims (i) challenging the validity, effectiveness, or ownership by Duck Company of any of the Duck Company Owned Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale or any other exercise of rights in any Duck Company Owned Intellectual Property by Duck Company or its licensees infringes, or will infringe on, any intellectual property or other proprietary or personal right of any person, have been asserted or, to the knowledge of DuckCompany, are threatened by any person nor, to the knowledge of Duckthe Company, are there any valid grounds for any bona fide claim of any such kind. All granted or issued patents and mask works and all registered trademarks listed on the Duck Disclosure Schedule and all copyright registrations held by Duck are valid, enforceable and subsisting. To the knowledge of DuckCompany, there is no material unauthorized use, infringement or misappropriation of any of the Duck Company Owned Intellectual Property by any third party, employee or former employee.
(vif) Except as set forth on SCHEDULE 3.01(f), no No parties other than Duck Company possess any current or contingent rights to any source code that is part of the Duck Company Owned Intellectual Property (including, without limitation, through any escrow account).
(viig) SCHEDULE 3.01(f) The Company Disclosure Schedule lists all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Company Owned Intellectual Property other than employees of Duck Company whose work product was created by them entirely within the scope of their employment by Duck Company and constitutes works made for hire owned by DuckCompany. Duck Company has secured from all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Company Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to Duck Company and has provided true and complete copies of such assignments or licenses to Parent.
(viiih) SCHEDULE 3.01(f) The Company Disclosure Schedule includes a true and complete list of support and maintenance agreements relating to Duck Company Owned Intellectual Property or to which Duck Company is a party as to Duck Company Licensed Intellectual Property including the identity of the parties and the respective dates of such agreements and remedies for their breachagreements.
(ix) Duck has obtained legally binding written agreements from all employees and third parties with whom Duck has shared confidential proprietary information (i) of Duck, or (ii) received from others which Duck is obligated to treat as confidential, which agreements require such employees and third parties to keep such information confidential.
(x) Duck has obtained any and all necessary consents from consumers with regard to Duck's collection and dissemination of personal consumer information in accordance with Duck's privacy policy as published on its website. Duck's practices regarding the collection and use of consumer personal information are in accordance with Duck's privacy policy as published on its website.
(xi) To the knowledge of Duck, the Duck Owned Intellectual Property is, and any products manufactured and commercially released by Duck or currently under development, are fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. To the best of Duck's knowledge, the Duck Licensed Intellectual Property is fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. SCHEDULE 3.01(f) sets forth the tests, inquiries and other activities undertaken by Duck up to Closing, with respect to the Year 2000 Compliant nature of any and all Duck Licensed Intellectual Property. For the purposes of this Agreement, "Year 2000 Compliant" means that neither the performance nor the functionality of the applicable Duck Intellectual Property or applicable product is or will be materially affected by dates prior to, during or after the calendar year 2000 and in particular (but without limitation): A such Duck Intellectual Property or product accurately receives, provides and processes, and will accurately receive, provide and process, date/time data (including calculating, comparing and sequencing) from, into and between the twentieth and twenty-first centuries including calendar years 1999 and 2000; B such Duck Intellectual Property or product will not malfunction, cease to function, provide invalid or incorrect results or cause any interruption in the operation of the business of Duck as a result of any date/time dat C data-based functionality of such Duck Intellectual Property or product behaves and will continue to behave consistently for dates prior to, during and after the year 2000; D in all interfaces and data storage of such Duck Intellectual Property or product, the century in any date is and will be specified either explicitly or by unambiguous algorithms or inferencing rules; and E the year 2000 is and will be recognized as a leap year of such Duck Intellectual Property or product.
Appears in 1 contract
Technology and Intellectual Property Rights. (i) The "Duck Intellectual Property" consists of the following: all patents, trademarks, trade names, service marks, mask works, domain names, copyrights and any renewal rights, applications and registrations for any of the foregoing, and all trade dress, supplier lists, trade secrets, know-how, moral rights, computer software programs or applications (in both source and object code form) owned by Duck; C all goodwill associated with trademarks, trade names service marks and trade dress owned by Duck; D all software and firmware listings, and updated software source code, and complete system build software and instructions related to all software described herein owned by Duck; E all documents, records and files relating to design, end user documentation, manufacturing, quality control, sales, marketing or customer support for all intellectual property described herein owned by Duck; F all other tangible or intangible proprietary information and materials owned by Duck; and G all license and other rights in any third party product, intellectual property, proprietary or personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property and tangible and intangible proprietary information described in (A) through (E) above that are being, and/or have been, used, or are currently under development for use, in the business of Duck as it has been, is currently or is currently anticipated to be (up to the Closing), conducted. Duck Intellectual Property described in clauses (A) to (E) above is referred to herein as "Duck Owned Intellectual Property" and Duck Intellectual Property described in clause (F) above is referred to herein as "Duck Licensed Intellectual Property." Unless otherwise noted, all references to "Duck Intellectual Property" shall refer to both Duck Owned Intellectual Property and Duck Licensed Intellectual Property.
(ii) SCHEDULE 3.01(f) lists: (i) all patents, registered copyrights, trademarks, service marks, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in the Duck Owned Intellectual Property; (ii) all hardware products and tools, software products and tools, and services that are currently published, offered, or under development by Duck; (iii) all material licenses, sublicenses and other agreements to which Duck is a party and pursuant to which any other person is authorized to have access to or use the Duck Owned Intellectual Property or exercise any other right with regard thereto; and (iv) all Duck Licensed Intellectual Property (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by Duck). The disclosures described in (iii), (iv) and (v) hereof include the names and dates of the relevant agreements, as well as the identities of the parties thereto.
(iii) The Duck Intellectual Property consists solely of items and rights that are either: (i) owned by Duck, (ii) in the public domain, or (iii) rightfully used and authorized for use by Duck and its successors pursuant to a valid license or other agreement. Duck has all rights in the Duck Intellectual Property reasonably necessary to carry out Duck's current, and anticipated future (up to the Closing) activities and has or had all rights in the Duck Intellectual Property reasonably necessary to carry out Duck's former activities, including without limitation, if necessary to carry out such activities, rights to make, use, exclude others from using, reproduce, modify, adapt, create derivative works based on, translate, distribute (directly and indirectly), transmit, display and perform publicly, license, rent, lease, assign, and sell the Duck Intellectual Property in all geographic locations and fields of use, and to sublicense any or all such rights to third parties, including the right to grant further sublicenses. All material software and firmware listings that are part of the Duck Owned Intellectual Property are adequately commented in accordance with current software industry standards.
(iv) Duck is not, nor as a result of the execution or delivery of this Agreement, or performance of Duck's obligations hereunder, will Duck be, in violation of any license, sublicense or other agreement relating to the Duck Intellectual Property to which Duck is a party or otherwise bound. Except pursuant to the terms of the agreements listed in on SCHEDULE 3.01(f), Duck is not obligated to provide any consideration (whether financial or otherwise) to any third party, nor is any third party otherwise entitled to any consideration, with respect to any exercise of rights by Duck or its successors in the Duck Intellectual Property.
(v) To the knowledge of Duck, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Owned Intellectual Property or any other authorized exercise of rights in or to the Duck Owned Intellectual Property by Duck or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, to the knowledge of Duck, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Duck Licensed Intellectual Property or any other authorized exercise of rights in or to the Duck Licensed Intellectual Property by Duck or its licensees does not and will not infringe any copyright, patent, trade secret, trademark, service xxxx, trade name, firm name, logo, trade dress, moral right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Except as set forth on SCHEDULE 3.01(f), no claims (i) challenging the validity, effectiveness, or ownership by Duck of any of the Duck Owned Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale or any other exercise of rights in any Duck Owned Intellectual Property by Duck or its licensees infringes, or will infringe on, any intellectual property or other proprietary or personal right of any person, have been asserted or, to the knowledge of Duck, are threatened by any person nor, to the knowledge of Duck, are there any valid grounds for any bona fide claim of any such kind. All granted or issued patents and mask works and all registered trademarks listed on the Duck Disclosure Schedule and all copyright registrations held by Duck are valid, enforceable and subsisting. To the knowledge of Duck, there is no material unauthorized use, infringement or misappropriation of any of the Duck Owned Intellectual Property by any third party, employee or former employee.
(vi) Except as set forth on SCHEDULE 3.01(f), no parties other than Duck possess any current or contingent rights to any source code that is part of the Duck Owned Intellectual Property (including, without limitation, through any escrow account).
(vii) SCHEDULE 3.01(f) lists all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Owned Intellectual Property other than employees of Duck whose work product was created by them entirely within the scope of their employment by Duck and constitutes works made for hire owned by Duck. Duck has secured from all parties who have created any material portion of, or otherwise have any rights in or to, the Duck Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to Duck and has provided true and complete copies of such assignments or licenses to Parent.
(viii) SCHEDULE 3.01(f) includes a true and complete list of support and maintenance agreements relating to Duck Owned Intellectual Property or to which Duck is a party as to Duck Licensed Intellectual Property including the identity of the parties and the respective dates of such agreements and remedies for their breach.
(ix) Duck has obtained legally binding written agreements from all employees and third parties with whom Duck has shared confidential proprietary information (i) of Duck, or (ii) received from others which Duck is obligated to treat as confidential, which agreements require such employees and third parties to keep such information confidential.
(x) Duck has obtained any and all necessary consents from consumers with regard to Duck's collection and dissemination of personal consumer information in accordance with Duck's privacy policy as published on its website. Duck's practices regarding the collection and use of consumer personal information are in accordance with Duck's privacy policy as published on its website.
(xi) To the knowledge of Duck, the Duck Owned Intellectual Property is, and any products manufactured and commercially released by Duck or currently under development, are fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. To the best of Duck's knowledge, the Duck Licensed Intellectual Property is fully Year 2000 Compliant in all material respects and will not cease to be fully Year 2000 Compliant in any material respect at any time prior to, during or after the calendar year 2000. SCHEDULE 3.01(f) sets forth the tests, inquiries and other activities undertaken by Duck up to Closing, with respect to the Year 2000 Compliant nature of any and all Duck Licensed Intellectual Property. For the purposes of this Agreement, "Year 2000 Compliant" means that neither the performance nor the functionality of the applicable Duck Intellectual Property or applicable product is or will be materially affected by dates prior to, during or after the calendar year 2000 and in particular (but without limitation): A such Duck Intellectual Property or product accurately receives, provides and processes, and will accurately receive, provide and process, date/time data (including calculating, comparing and sequencing) from, into and between the twentieth and twenty-first centuries centuries, including calendar years 1999 and 2000; B such Duck Intellectual Property or product will not malfunction, cease to function, provide invalid or incorrect results or cause any interruption in the operation of the business of Duck as a result of any date/time dat C data-based functionality of such Duck Intellectual Property or product behaves and will continue to behave consistently for dates prior to, during and after the year 2000; D in all interfaces and data storage of such Duck Intellectual Property or product, the century in any date is and will be specified either explicitly or by unambiguous algorithms or inferencing rules; and E the year 2000 is and will be recognized as a leap year of such Duck Intellectual Property or product.
Appears in 1 contract
Samples: Merger Agreement (On2com Inc)
