Common use of Technology and Intellectual Property Rights Clause in Contracts

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, mask works, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights, and applications and registrations for any of the foregoing; (ii) 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; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and similar rights in any third party product or any third party intellectual property of the types described in (i) through (iii) above; that are owned or held by Excell or that are being, and/or have been, used, or are currently under development for use, in the business of Excell as it has been, is currently or is currently planned to be conducted; provided, however, that Excell Intellectual Property will not include any commercially available third party software or related intellectual property. (b) Section 3.5 of the Excell Disclosure Schedule lists: (i) all patents, copyright registrations, mask works, registered trademarks, registered 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 Excell Intellectual Property and owned by Excell; (ii) the general types of hardware products and tools, software products and tools and services that are currently published, offered, or under development by Excell; and (iii) all licenses, sublicenses and similar agreements to which Excell is a party and pursuant to which Excell or any other person (as used in this Agreement, the term "person" includes any entity) is authorized to use any Excell Intellectual ------ Property. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Excell Intellectual Property that is necessary for the conduct of its business as now being conducted consists solely of items and rights that are either: (i) owned solely by Excell; (ii) in the public domain; or (iii) rightfully used and authorized for use by Excell and its successors pursuant to a valid license. Section 3.5 of the Excell Disclosure Schedule separately lists any material Excell Intellectual Property that consists of a license or sublicense of intellectual property of a third party. Excell has all rights in Excell Intellectual Property necessary to carry out Excell's current activities and future activities that are under active current development. (d) Excell is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of Excell's obligations hereunder or the consummation of the Merger, will Excell be, in violation of any license, sublicense or other agreement relating to any Excell Intellectual Property to which Excell is a party or otherwise bound and which violation would have a material adverse effect on Excell's Business Condition. (e) The use of the Excell Intellectual Property by Excell or its customers does 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, or right in personal data of any person, which infringement, if prosecuted, would have a material adverse effect on Excell's Business Condition. No claims (i) challenging the validity, effectiveness, or ownership by Excell of any Excell 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 product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Excell infringes or will infringe on any intellectual property or other proprietary or personal right of any person have been asserted to Excell or, to the knowledge of Excell (as defined below), are threatened by any person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Excell Intellectual Property, other than review of pending applications for patents or trademarks, and Excell is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other person. All granted or issued patents and mask works and all registered trademarks owned by Excell and all copyright registrations held by Excell are valid, enforceable and subsisting. To the knowledge of Excell, there is no unauthorized use, infringement, or misappropriation of any Excell Intellectual Property by any third party, employee or former employee. (f) Excell has secured from all parties who have created any portion of, or otherwise have any rights in or to, Excell Intellectual Property valid and enforceable written assignments of any such work or other rights to Excell. (g) Excell has obtained written agreements from all employees and from third parties with whom Excell, to its knowledge, has shared confidential proprietary information (i) of Excell or (ii) received from others that Excell is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof.

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, mask works, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights, rights and applications and registrations for any of the foregoing; (ii) 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; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and similar other rights in any third party product or any third party intellectual property of the types described in (i) through (iii) above; that are owned or held by Excell or on behalf of Navigator or that are being, and/or have been, used, or are currently under development for use, in the business of Excell Navigator as it has been, is currently or is currently planned to be conducted; provided, however, that Excell Navigator Intellectual Property will not include any commercially available third party software or related intellectual property. (b) Section 3.5 of the Excell Navigator Disclosure Schedule lists: (i) all ------------------------------------------------ patents, copyright registrations, mask works, registered trademarks, registered 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 Excell Navigator Intellectual Property and owned by Excellor on behalf of Navigator; (ii) the general types of all hardware products and tools, software products and tools and services that are currently published, offered, or under development by ExcellNavigator; and (iii) all licenses, sublicenses and similar other agreements to which Excell Navigator is a party and pursuant to which Excell Navigator or any other person (as used in this Agreement, the term "person" includes any entity) is authorized to use any Excell Navigator Intellectual ------ PropertyProperty or exercise any other right with regard thereto. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Excell Navigator Intellectual Property that is necessary for the conduct of its business as now being conducted consists solely of items and rights that are either: (i) owned solely by ExcellNavigator; (ii) in the public domain; or (iii) rightfully used and authorized for use by Excell Navigator and its successors pursuant to a valid license. Section 3.5 of the Excell Disclosure Schedule separately lists any material Excell All Navigator Intellectual Property that consists of a license or sublicense other rights to third party property is separately set forth in Section 3.5 of intellectual property of a third partythe Navigator Disclosure Schedule. Excell Navigator has ------------------------------------------------ all rights in Excell Navigator Intellectual Property necessary to carry out ExcellNavigator's current activities current, former and planned future activities that are under active current developmentactivities, including without limitation 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 Navigator 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. (d) Excell Navigator is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of ExcellNavigator's obligations hereunder or the consummation of the Merger, will Excell Navigator be, in violation of any license, sublicense or other agreement relating to any Excell Navigator Intellectual Property to which Excell Navigator is a party or otherwise bound and which violation would have a material adverse effect on Excell's Business Conditionbound. Navigator 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 Navigator or Parent, as successor to Navigator, in Navigator Intellectual Property. (e) The use use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of the Excell rights in any Navigator Intellectual Property Property, by Excell or its customers Navigator does 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, or right in personal data of any person, which infringement, if prosecuted, would have a material adverse effect on Excell's Business ConditionPerson. No claims (i) challenging the validity, effectiveness, or ownership by Excell Navigator of any Excell Navigator 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 product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, Navigator Intellectual Property by Excell Navigator infringes or will infringe on any intellectual property or other proprietary or personal right of any person Person have been asserted to Excell Navigator or, to the knowledge of Excell Navigator (as defined below), are threatened by any person Person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Excell Navigator Intellectual Property, other than review of pending applications for patents or trademarkspatent, and Excell Navigator is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other personPerson. All granted or issued patents and mask works and all registered trademarks and copyright registrations owned by Excell and all copyright registrations held by Excell Navigator are valid, enforceable and subsisting. To the knowledge of ExcellNavigator and the Stockholder, there is no unauthorized use, infringement, infringement or misappropriation of any Excell Navigator Intellectual Property by any third party, employee or former employee. (f) Excell Section 3.5 of the Navigator Disclosure Schedule separately lists ------------------------------------------------ all parties who have created any portion of, or otherwise have any rights in or to, Navigator Intellectual Property. Navigator has secured from all parties who have created any portion of, or otherwise have any rights in or to, Excell Navigator Intellectual Property valid and enforceable written assignments of any such work or other rights to ExcellNavigator and has provided true and complete copies of such assignments to Parent. (g) Excell Navigator has obtained written agreements from all employees and from third parties with whom ExcellNavigator, to its and Stockholder's knowledge, has shared confidential proprietary information (i) of Excell Navigator or (ii) received from others that Excell Navigator is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Navigator has made available copies of such written agreements, as executed, to Parent.

Technology and Intellectual Property Rights. (a) The "Company Intellectual Property" consists of the following: (i) all patents, trademarks, trade names, service marks, trade dressmask works, domain names, copyrights and any renewal rights thereforrights, mask worksapplications and registrations for any of the foregoing, and all trade dress, net lists, schematics, software, firmware, technology, manufacturing processes, customer and supplier lists, customer lists, trade secrets, know-how, moral rights, computer software programs or applications (in both source and applications and registrations for any of the foregoingobject code form) owned by Company; (ii) all goodwill associated with trademarks, trade names service marks and trade dress owned by Company; (iii) all software and firmware listings, and updated software source code, and complete system build software and instructions related to all software described in the Company Disclosure Schedule pursuant to Section 2.1.5(b) hereof owned by 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 hereinherein owned by Company; (iiiv) all other tangible or intangible proprietary information and materialsmaterials owned by Company; and (ivvi) all license and similar other rights in any third party product product, intellectual property, proprietary or any third party personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property of the types and tangible and intangible proprietary information described in (i) through (iiiv) above; that are owned or held by Excell or that are being, and/or have been, used, or are currently under development for use, in the business of Excell Company as it has been, is currently or is currently planned anticipated to be (up to the Closing), conducted; provided, however, that Excell . Company Intellectual Property will not include any commercially available third party software or related intellectual propertydescribed in clauses (i) to (v) above is referred to herein as "Company Owned Intellectual Property" and Company Intellectual Property described in clause (vi) above is referred to herein as "Company Licensed Intellectual Property." Unless otherwise noted, all references to "Company Intellectual Property" shall refer to both Company Owned Intellectual Property and Company Licensed Intellectual Property. (b) Section 3.5 of the Excell The Company Disclosure Schedule lists: (i) all patents, copyright registrationsregistered copyrights, mask works, registered trademarks, registered service marks, domain names, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in Excell the Company Owned Intellectual Property and owned by ExcellProperty; (ii) the general types of all hardware products and tools, software products and tools tools, and services that are currently published, offered, or under development by ExcellCompany; and (iii) all licenses, sublicenses and similar other agreements to which Excell Company is a party and pursuant to which Excell any end user or any other person (as used in this Agreement, the term "person" includes any entity) third party is authorized to have access to or use the Company Intellectual Property or exercise any Excell other right with regard thereto; (iv) all Company Licensed Intellectual ------ PropertyProperty (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by the Company); and (v) any obligations of exclusivity, noncompetition, nonsolicitation, first refusal or first negotiation to which Company is subject under any agreement concerning Company Intellectual Property that does not fall within the ambit of (iii) or (iv) above. 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 to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Excell The Company Intellectual Property that is necessary for the conduct of its business as now being conducted consists solely of items and rights that which are either: (i) owned solely by ExcellCompany by assignment or otherwise; (ii) in the public domain; or (iii) rightfully used and authorized for use by Excell Company and its successors pursuant to a valid license. Section 3.5 of the Excell Disclosure Schedule separately lists any material Excell Intellectual Property that consists of a license or sublicense of intellectual property of a third partyother agreement. Excell Company has all rights in Excell the Company Intellectual Property necessary to carry out ExcellCompany's current and anticipated future (up to the Closing) activities and future activities has or had all rights in the Company Intellectual Property reasonably necessary to carry out Company's former activities, including without limitation, and solely to the extent 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), disclose, transmit, display and perform publicly, license, rent, lease, assign, and sell the Company 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 software and firmware listings that are under active current developmentpart of the Company Owned Intellectual Property are adequately commented in accordance with generally accepted standard industry practices. (d) Excell Company is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of ExcellCompany's obligations hereunder or the consummation of the Mergerthereunder, will Excell Company be, in violation of any license, sublicense sublicense, or other agreement relating to any Excell the Company Intellectual Property to which Excell Company is a party or otherwise bound and which violation would have a material adverse effect on Excell's Business Conditionbound. Except as specifically described in the Company Disclosure Schedule, 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 Company or its successors or licensees in the Company Intellectual Property. (e) The use use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Company Owned Intellectual Property or any other authorized exercise of rights in or to the Excell Company Owned Intellectual Property by Excell Company or its customers successors or licensees does 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, which infringementto the knowledge of Company and the Principal Shareholders, if prosecutedthe use, would have a material adverse effect on Excell's Business Conditionreproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Company Licensed Intellectual Property or any other authorized exercise of rights in or to the Company Licensed Intellectual Property by Company or its licensees does 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. No claims (i) challenging the validity, effectiveness, or ownership by Excell Company of any Excell of the Company 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 productCompany Intellectual Property by Company or its successors or licensees infringes, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Excell infringes or will infringe on on, any intellectual property or other proprietary or personal right of any person person, have been asserted to Excell or, to the knowledge of Excell (as defined below)Company and the Principal Shareholders, are threatened by any person nor nor, to the knowledge of Company and the Principal Shareholders, are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Excell Intellectual Property, other than review of pending applications for patents or trademarks, and Excell is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other person. All granted or issued patents and mask works and all registered mask works, domain names, and trademarks owned by Excell listed on the Company Disclosure Schedule and all copyright registrations held by Excell Company are valid, enforceable and subsisting. To the knowledge of ExcellCompany and the Principal Shareholders, there is no unauthorized use, infringement, or misappropriation of any Excell of the Company Owned Intellectual Property by any third partyemployee, employee or former employee, or other third party. (f) Excell has secured from No parties other than Company possess any current or contingent rights to any source code that is part of the Company Owned Intellectual Property (including, without limitation, through any escrow account). (g) The Company Disclosure Schedule lists all parties who have created any portion of, or otherwise have any rights in or to, Excell the Company Owned Intellectual Property other than employees of Company whose work product was created by them within the scope of their employment by Company and constitutes works made for hire owned by Company. Company has secured from all parties who are not employees and who have created any material portion of, or otherwise have any rights in or to, the Company Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to ExcellCompany and has provided true and complete copies of such assignments or licenses to Expedia. (gh) Excell The Company Disclosure Schedule includes a true and complete list of support and maintenance agreements relating to Company Owned Intellectual Property or to which Company is a party as to Company Licensed Intellectual Property, including the identity of the parties and the respective dates of such agreements. (i) Company has obtained legally binding written agreements from all employees and from third parties with whom Excell, to its knowledge, Company has shared confidential proprietary information (i) of Excell Company or (ii) received from others that Excell which Company is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that which agreements require such employees and third parties to keep such information confidential confidential. (j) Company has obtained any and all necessary consents from consumers with regard to the Company's collection and dissemination of personal consumer information in accordance with Company's privacy policy as published on its website. Company's practices regarding the terms thereofcollection and use of consumer personal information are in accordance with Company's privacy policy as published on its website. (k) The Company Owned Intellectual Property is, and any products manufactured and commercially released by Company 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 during or after the calendar year AD 2000. To the knowledge

Technology and Intellectual Property Rights. (a) The "Company Intellectual Property" consists of the following: (i) all patents, trademarks, trade names, service marks, trade dressmask works, domain names, copyrights and any renewal rights thereforrights, mask worksapplications and registrations for any of the foregoing, and all trade dress, net lists, schematics, software, firmware, technology, manufacturing processes, customer and supplier lists, customer lists, trade secrets, know-how, moral rights, computer software programs or applications (in both source and applications and registrations for any of the foregoingobject code form) owned by Company; (ii) all goodwill associated with trademarks, trade names service marks and trade dress owned by Company; (iii) all software and firmware listings, and updated software source code, and complete system build software and instructions related to all software described in the Company Disclosure Schedule pursuant to Section 2.1.5(b) hereof owned by 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 hereinherein owned by Company; (iiiv) all other tangible or intangible proprietary information and materialsmaterials owned by Company; and (ivvi) all license and similar other rights in any third party product product, intellectual property, proprietary or any third party personal rights, documentation, or tangible or intangible property, including without limitation the types of intellectual property of the types and tangible and intangible proprietary information described in (i) through (iiiv) above; that are owned or held by Excell or that are being, and/or have been, used, or are currently under development for use, in the business of Excell Company as it has been, is currently or is currently planned anticipated to be (up to the Closing), conducted; provided, however, that Excell . Company Intellectual Property will not include any commercially available third party software or related intellectual propertydescribed in clauses (i) to (v) above is referred to herein as "Company Owned Intellectual Property" and Company Intellectual Property described in clause (vi) above is referred to herein as "Company Licensed Intellectual Property." Unless otherwise noted, all references to "Company Intellectual Property" shall refer to both Company Owned Intellectual Property and Company Licensed Intellectual Property. (b) Section 3.5 of the Excell The Company Disclosure Schedule lists: (i) all patents, copyright registrationsregistered copyrights, mask works, registered trademarks, registered service marks, domain names, trade dress, any renewal rights for any of the foregoing, and any applications and registrations for any of the foregoing, that are included in Excell the Company Owned Intellectual Property and owned by ExcellProperty; (ii) the general types of all hardware products and tools, software products and tools tools, and services that are currently published, offered, or under development by ExcellCompany; and (iii) all licenses, sublicenses and similar other agreements to which Excell Company is a party and pursuant to which Excell any end user or any other person (as used in this Agreement, the term "person" includes any entity) third party is authorized to have access to or use the Company Intellectual Property or exercise any Excell other right with regard thereto; (iv) all Company Licensed Intellectual ------ PropertyProperty (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by Company); and (v) any obligations of exclusivity, noncompetition, nonsolicitation, first refusal or first negotiation to which Company is subject under any agreement that does not fall within the ambit of (iii) or (iv) above. 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 to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Excell The Company Intellectual Property that is necessary for the conduct of its business as now being conducted consists solely of items and rights that which are either: (i) owned solely by ExcellCompany; (ii) in the public domain; or (iii) rightfully used and authorized for use by Excell Company and its successors pursuant to a valid license. Section 3.5 of the Excell Disclosure Schedule separately lists any material Excell Intellectual Property that consists of a license or sublicense of intellectual property of a third partyother agreement. Excell Company has all rights in Excell the Company Intellectual Property necessary to carry out ExcellCompany's current and anticipated future (up to the Closing) activities and future activities has or had all rights in the Company Intellectual Property reasonably necessary to carry out Company's former activities, including without limitation, and solely to the extent 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), disclose, transmit, display and perform publicly, license, rent, lease, assign, and sell the Company 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 software and firmware listings that are under active current developmentpart of the Company Owned Intellectual Property are adequately commented in accordance with generally accepted standard industry practices. (d) Excell Company is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of ExcellCompany's obligations hereunder or the consummation of the Mergerthereunder, will Excell Company be, in violation of any license, sublicense sublicense, or other agreement relating to any Excell the Company Intellectual Property to which Excell Company is a party or otherwise bound and which violation would have a material adverse effect on Excell's Business Conditionbound. Except as specifically described in the Company Disclosure Schedule, 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 Company or its successors or licensees in the Company Intellectual Property. (e) The use use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Company Owned Intellectual Property or any other authorized exercise of rights in or to the Excell Company Owned Intellectual Property by Excell Company or its customers successors or 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, which infringementto the knowledge of Company and the Principal Stockholders, if prosecutedthe use, would have a material adverse effect on Excell's Business Conditionreproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any Company Licensed Intellectual Property or any other authorized exercise of rights in or to the Company Licensed Intellectual Property by 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. No claims (i) challenging the validity, effectiveness, or ownership by Excell Company of any Excell of the Company 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 productCompany Intellectual Property by Company or its successors or licensees infringes, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Excell infringes or will infringe on on, any intellectual property or other proprietary or personal right of any person person, have been asserted to Excell or, to the knowledge of Excell (as defined below)Company and the Principal Stockholders, are threatened by any person nor nor, to the knowledge of Company and the Principal Stockholders, are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Excell Intellectual Property, other than review of pending applications for patents or trademarks, and Excell is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other person. All granted or issued patents and mask works and all registered mask works, domain names, and trademarks owned by Excell listed on the Company Disclosure Schedule and all copyright registrations held by Excell Company are valid, enforceable and subsisting. To the knowledge of ExcellCompany and the Principal Stockholders, there is no unauthorized use, infringement, or misappropriation of any Excell of the Company Owned Intellectual Property by any third partyemployee, employee or former employee, or other third party. (f) Excell has secured from No parties other than Company possess any current or contingent rights to any source code that is part of the Company Owned Intellectual Property (including, without limitation, through any escrow account). (g) The Company Disclosure Schedule lists all parties who have created any portion of, or otherwise have any rights in or to, Excell the Company Owned Intellectual Property other than employees of Company whose work product was created by them within the scope of their employment by Company and constitutes works made for hire owned by Company. Company has secured from all parties who are not employees and who have created any material portion of, or otherwise have any rights in or to, the Company Owned Intellectual Property valid and enforceable written assignments or licenses of any such work or other rights to ExcellCompany and has provided true and complete copies of such assignments or licenses to Expedia. (gh) Excell The Company Disclosure Schedule includes a true and complete list of support and maintenance agreements relating to Company Owned Intellectual Property or to which Company is a party as to Company Licensed Intellectual Property, including the identity of the parties and the respective dates of such agreements. (i) Company has obtained legally binding written agreements from all employees and from third parties with whom Excell, to its knowledge, Company has shared confidential proprietary information (i) of Excell Company or (ii) received from others that Excell which Company is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that which agreements require such employees and third parties to keep such information confidential confidential. (j) Company has obtained any and all necessary consents from consumers with regard to Company's collection and dissemination of personal consumer information in accordance with Company's privacy policy as published on its website. Company's practices regarding the terms thereofcollection and use of consumer personal information are in accordance with Company's privacy policy as published on its website. (k) The Company Owned Intellectual Property is, and any products manufactured and commercially released by Company 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 during or after the calendar year A.D. 2000. To the knowledge of Company and the Principal Stockholders, the Company 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 during or after the calendar year 2000. Schedule 2.1.5(k) sets forth the tests, inquiries and other activities undertaken by Company up to the Closing, with respect to the Year 2000 Compliant nature of any and all Company Intellectual Property. For the purposes of this Agreement, "Year 2000 Compliant" means that neither the performance nor the functionality of any Company Intellectual Property is or will be materially affected by dates prior to, during or after the calendar year A.D. 2000 and in particular (but without limitation):

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, mask works, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights, rights and applications and registrations for any of the foregoing; (ii) 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; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and similar other rights in any third party product or any third party intellectual property of the types described in (i) through (iii) above; that are owned or held by Excell or on behalf of Alacrity or that are being, and/or have been, used, or are currently under development for use, in the business of Excell Alacrity as it has been, is currently or is currently planned to be conducted; provided, however, that Excell Alacrity Intellectual Property will not include any commercially available intellectual property of any third party software or related intellectual propertysoftware. (b) Section 3.5 of the Excell Alacrity Disclosure Schedule lists: (i) all patents, copyright registrations, mask works, registered trademarks, registered 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 Excell Alacrity Intellectual Property and owned by Excellor on behalf of Alacrity; (ii) the general types of all hardware products and tools, software products and tools and services that are currently published, offered, or under development by ExcellAlacrity; and (iii) all licenses, sublicenses and similar other agreements to which Excell Alacrity is a party and pursuant to which Excell Alacrity or any other person (as used in this Agreement, the term "person" includes any entity) is authorized to use any Excell Alacrity Intellectual ------ PropertyProperty or exercise any other right with regard thereto. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Excell Alacrity Intellectual Property that is necessary for the conduct of its business as now being conducted consists solely of items and rights that are either: (i) owned solely by ExcellAlacrity; (ii) in the public domain; or (iii) rightfully used and or authorized for use by Excell Alacrity and its successors pursuant to a valid license, and none of such items or rights are in the public domain or are "free-xxxx" or "shareware". Section 3.5 of the Excell Disclosure Schedule separately lists any material Excell All Alacrity Intellectual Property that consists of a license or sublicense other rights to third party property is separately set forth in Section 3.5 of intellectual property of a third partythe Alacrity Disclosure Schedule. Excell Alacrity has all rights in Excell Alacrity Intellectual Property necessary to carry out ExcellAlacrity's current activities current, former and currently planned future activities that are under active current developmentactivities, including without limitation 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 Alacrity 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. (d) Excell Alacrity is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of ExcellAlacrity's obligations hereunder or the consummation of the Merger, will Excell Alacrity be, in violation of any license, sublicense or other agreement relating to any Excell Alacrity Intellectual Property to which Excell Alacrity is a party or otherwise bound and which violation would have a material adverse effect on Excell's Business Conditionbound. Alacrity 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 Alacrity or TranSwitch, as successor to Alacrity, in Alacrity Intellectual Property. (e) The use use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of the Excell Intellectual Property rights in any product, work, technology, service or process as used, provided, or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Excell or its customers Alacrity does 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, or right in personal data of any person, which infringement, if prosecuted, would have a material adverse effect on Excell's Business ConditionPerson. No claims (i) challenging the validity, effectiveness, or ownership by Excell Alacrity of any Excell Alacrity 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 product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Excell Alacrity infringes or will infringe on any intellectual property or other proprietary or personal right of any person Person have been asserted to Excell Alacrity or, to the knowledge of Excell Alacrity (as defined below), are threatened by any person Person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Excell Alacrity Intellectual Property, other than review of pending applications for patents or trademarkspatent, and Excell Alacrity is not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other personPerson. All granted or issued patents and mask works and all registered trademarks and copyright registrations owned by Excell and all copyright registrations held by Excell Alacrity are valid, enforceable and subsisting. To the knowledge of ExcellAlacrity, there is no unauthorized use, infringement, or misappropriation of any Excell Alacrity Intellectual Property by any third party, employee or former employee. (f) Excell Section 3.5 of the Alacrity Disclosure Schedule separately lists all parties (other than employees) who have created any portion of, or otherwise have any rights in or to, such Alacrity Intellectual Property other than Alacrity Intellectual Property that is licensed to Alacrity. Alacrity has secured from all parties who have created any portion of, or otherwise have any rights in or to, Excell Alacrity Intellectual Property valid and enforceable written assignments of any such work or other rights to ExcellAlacrity and has provided true and complete copies of such assignments to TranSwitch. (g) Excell Alacrity has obtained written agreements from all employees and from third parties with whom ExcellAlacrity, to its knowledge, has shared confidential proprietary information (i) of Excell Alacrity or (ii) received from others that Excell Alacrity is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Alacrity has made available copies of such written agreements, as executed, to TranSwitch.

Technology and Intellectual Property Rights. (i) all patents, trademarks, trade names, service marks, trade dress, copyrights and any renewal rights therefor, mask works, schematics, software, firmware, technology, manufacturing processes, supplier lists, customer lists, trade secrets, know-how, moral rights, rights and applications and registrations for any of the foregoing; (ii) 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; (iii) all other tangible or intangible proprietary information and materials; and (iv) all license and similar other rights in any third party product or any third party intellectual property of the types described in (i) through (iii) above; that are owned or held by Excell or on behalf of Diamond or any Subsidiary or that are being, and/or have been, used, or are currently under development for use, in the business of Excell Diamond or any Subsidiary as it has been, is currently or is currently planned to be conducted; provided, however, that Excell Diamond Intellectual Property will not include any commercially available third party software or related intellectual property. (b) Section 3.5 of the Excell Diamond Disclosure Schedule lists: (i) all patents, copyright registrations, mask works, registered trademarks, registered 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 Excell Diamond Intellectual Property and owned by Excellor on behalf of Diamond or any Subsidiary; (ii) the general types of all hardware products and tools, software products and tools and services that are currently published, offered, or under development by ExcellDiamond or any Subsidiary; and (iii) all licenses, sublicenses and similar other agreements to which Excell Diamond or any Subsidiary is a party and pursuant to which Excell Diamond or any Subsidiary or any other person (as used in this Agreement, the term "person" includes any entity) is authorized to use any Excell Diamond Intellectual ------ PropertyProperty or exercise any other right with regard thereto. The disclosures described in (iii) hereof include the identities of the parties to the relevant agreements, a description of the nature and subject matter thereof, the term thereof and the applicable royalty or summary of any formula or procedure for determining such royalty. (c) Excell Diamond Intellectual Property that is necessary for the conduct of its business as now being conducted consists solely of items and rights that are either: (i) owned solely by ExcellDiamond or any of its Subsidiaries; (ii) in the public domain; or (iii) rightfully used and authorized for use by Excell Diamond or any Subsidiary and its their successors pursuant to a valid license. Section 3.5 of the Excell Disclosure Schedule separately lists any material Excell All Diamond Intellectual Property that consists of a license or sublicense other rights to third party property is separately set forth in Section 3.5 of intellectual property of a third partythe Diamond Disclosure Schedule. Excell has Diamond and its Subsidiaries have all rights in Excell Diamond Intellectual Property necessary to carry out ExcellDiamond's current activities or any Subsidiary's current, former and planned future activities that are under active current developmentactivities, including without limitation 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 Diamond 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. (d) Excell Diamond is not, nor as a result of the execution or delivery of this Agreement and all other agreements contemplated hereby, or performance of ExcellDiamond's obligations hereunder or the consummation of the Merger, will Excell Diamond be, in violation of any license, sublicense or other agreement relating to any Excell Diamond Intellectual Property to which Excell Diamond or any Subsidiary is a party or otherwise bound and which violation would have a material adverse effect on Excell's Business Conditionbound. Diamond 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 Diamond or Surviving Corporation, as successor to Diamond, in Diamond Intellectual Property. (e) The use To the knowledge of Diamond or any of its Subsidiaries, the Excell Intellectual Property use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any product, work, technology, service or process as used, provided, or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Excell Diamond or its customers any Subsidiary does 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, or right in personal data of any person, which infringement, if prosecuted, would have a material adverse effect on Excell's Business ConditionPerson. No claims (i) challenging the validity, effectiveness, or ownership by Excell Diamond or any Subsidiary of any Excell Diamond 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 product, work, technology, service, or process as used, provided or offered at any time, or as proposed for use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights, by Excell Diamond or any Subsidiary infringes or will infringe on any intellectual property or other proprietary or personal right of any person Person have been asserted to Excell Diamond or any Subsidiary or, to the knowledge of Excell (as defined below)Diamond and its Subsidiaries, are threatened by any person Person nor are there any valid grounds for any bona fide claim of any such kind. There are no legal or governmental proceedings, including interference, re-examination, reissue, opposition, nullity, or cancellation proceedings pending that relate to any Excell Diamond Intellectual Property, other than review of pending applications for patents or trademarkspatent, and Excell is Diamond and its Subsidiaries are not aware of any information indicating that such proceedings are threatened or contemplated by any Governmental Entity or any other personPerson. All granted or issued patents and mask works and all registered trademarks and copyright registrations owned by Excell and all copyright registrations held by Excell Diamond or any Subsidiary are valid, enforceable and subsisting. To the knowledge of ExcellDiamond and its Subsidiaries, there is no unauthorized use, infringement, or misappropriation of any Excell Diamond Intellectual Property by any third party, employee or former employee. (f) Excell has Section 3.5 of the Diamond Disclosure Schedule separately lists all parties (other than employees) who have created any portion of, or otherwise have any rights in or to, Diamond Intellectual Property. Diamond and its Subsidiaries have secured from all parties who have created any portion of, or otherwise have any rights in or to, Excell Diamond Intellectual Property valid and enforceable written assignments of any such work or other rights to Excellor such Subsidiaries and has provided true and complete copies of such assignments to Parent. (g) Excell Diamond has obtained written agreements from all employees and from third parties with whom ExcellDiamond, to its knowledge, has shared confidential proprietary information (i) of Excell Diamond or any Subsidiary or (ii) received from others that Excell Diamond is obligated to treat as confidential and to obtain the written agreement of employees and others to keep confidential, that agreements require such employees and third parties to keep such information confidential in accordance with the terms thereof. Diamond has made available copies of such written agreements, as executed, to Parent.