Technology and Intellectual Property Rights. (i) Schedule M contains a list of INTELLECTUAL PROPERTY which includes the following: (1) all patents, domain names, trademarks, trade names, trade dress and service marks, and any applications and registrations for any of the foregoing, that is included in the OWNED INTELLECTUAL PROPERTY; (2) all registered and unregistered copyrights, and applications for registered copyrights for any OWNED INTELLECTUAL PROPERTY; (3) all material products and services that currently are published and/or offered by it, or that are currently under development by it and scheduled to be commercially released or offered prior to the CLOSING DATE; (4) all licenses and sublicenses of the OWNED INTELLECTUAL PROPERTY; (5) all LICENSED INTELLECTUAL PROPERTY and any sublicenses thereto; and (6) any material obligation of exclusivity, non-competition, non-solicitation, first negotiation or "most favoured nation" or "equally favoured nation" (e.g., obligating it to provide terms as favourable or more favourable as granted to others) to which it is subject under any agreement that does not fall within the ambit of (4) or (5) in this paragraph. (ii) BPO has the right to use all INTELLECTUAL PROPERTY used or held for use in the conduct of its business without any conflict with the rights of others. All products and technology that have been or currently are published and/or offered by it or are under development by it, and all products and/or technology underlying any and all services that have been or currently are offered by it or are under development by it is either: (1) owned by it, (2) in the public domain, or (3) rightfully used by the it pursuant to a valid written license or other agreement. (iii) BPO is not, as a result of the execution or delivery of this Agreement and/or the ancillary agreements, nor the performance of its obligations under them will cause it to be in violation of any license, sublicense or other agreement relating to the INTELLECTUAL PROPERTY or of any non-disclosure agreement to which it is a party or otherwise bound. (iv) BPO is not obligated to provide any financial consideration or other consideration to any third party, nor is any third party otherwise entitled to any financial consideration or other consideration, with respect to any exercise of rights by it or its successors in the INTELLECTUAL PROPERTY. (v) BPO's use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any OWNED INTELLECTUAL PROPERTY by it or its licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, company name, logo, trade dress, databxxx right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any LICENSED INTELLECTUAL PROPERTY or any other authorized exercise of rights in or to LICENSED INTELLECTUAL PROPERTY by it or its licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the distribution, licensing, sublicensing, sale, or other provision of products and services by it or its resellers or licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right of any person. (vi) No action, suit or proceeding, pending or otherwise, (i) challenging the validity, enforceability, or ownership by it of any of 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 OWNED INTELLECTUAL PROPERTY by it or its licensees infringes, misappropriates or violates any intellectual property or other proprietary or personal right of any person is pending or is threatened by any person. Further, no claim to the effect that the distribution, licensing, sublicensing, sale or other provision of products and services by it or its resellers or licensees infringes, misappropriates or violates any intellectual property or other proprietary or personal right of any person is pending or, to the knowledge of BPO, is threatened by any person. There is no unauthorized use, infringement or misappropriation of any of OWNED INTELLECTUAL PROPERTY by any third party, employee or former employee. (vii) No other party has any security interest in any Intellectual Property. (viii) BPO has secured from all parties who have created any portion of, or otherwise have any rights in or to, OWNED INTELLECTUAL PROPERTY, other than employees of itself whose work product was created by them entirely within the scope of their employment by it and constitutes work made for hire owned by it, valid written assignments or licenses of any such work or other rights to it that are enforceable by it and has made available true and complete copies of such assignments or licenses to the PURCHASER. (ix) BPO owns all right, title and interest in and to all data it collects from or discloses about users of its products and services. Its practices regarding the collection and use of consumer personal information are in accordance in all respects with applicable laws and regulations of all jurisdictions in which it operates. (x) No officer, director, shareholder or employee of BPO, nor any spouse, or relative thereof, owns directly or indirectly, in whole or in part, any INTELLECTUAL PROPERTY.
Appears in 1 contract
Samples: Strategic Partnership Agreement (Xinhua Finance Media LTD)
Technology and Intellectual Property Rights. (i) Schedule M contains a list of INTELLECTUAL PROPERTY which includes the following:
(1) all All patents, domain names, trademarks, trade names, trade dress and service marks, copyrights and any renewal rights therefor, software, mask works, net lists, schematics, technology, manufacturing processes, supplier lists, trade secrets, know-how, moral rights, applications for any of the foregoing, and all other tangible or intangible proprietary information or materials that are or have been used in (including in the development of) any product, technology or process (i) currently being or formerly manufactured, developed or marketed by Company, or (ii) previously or currently under development for possible future manufacturing, development, marketing or other use by Company will hereinafter be referred to as the "COMPANY INTELLECTUAL PROPERTY."
(a) The Company Disclosure Schedule lists: (i) all patents, copyrights, trademarks and any applications and registrations for any of the foregoing, that is foregoing included in the OWNED INTELLECTUAL PROPERTY;
Company Intellectual Property, together with a list of all of Company's currently manufactured products and currently published software products, (2ii) all registered licenses, sublicenses and unregistered copyrightsother agreements to which Company is a party and pursuant to which Company or any other person is authorized to use any of the Company Intellectual Property, and applications for registered copyrights for any OWNED INTELLECTUAL PROPERTY;
(3iii) all material products and services that currently are published and/or offered development agreements entered into by it, or that are currently under development by it and scheduled to be commercially released or offered prior to the CLOSING DATE;
(4) all licenses and sublicenses of the OWNED INTELLECTUAL PROPERTY;
(5) all LICENSED INTELLECTUAL PROPERTY and any sublicenses thereto; and
(6) any material obligation of exclusivity, non-competition, non-solicitation, first negotiation or "most favoured nation" or "equally favoured nation" (e.g., obligating it to provide terms as favourable or more favourable as granted to others) to which it is subject under any agreement that does not fall within the ambit of (4) or (5) in this paragraphCompany.
(iib) BPO has the right to use all INTELLECTUAL PROPERTY used or held for use in the conduct The Company Intellectual Property consists solely of its business without any conflict with the items and rights of others. All products and technology that have been or currently are published and/or offered by it or are under development by it, and all products and/or technology underlying any and all services that have been or currently are offered by it or are under development by it is eitherwhich are: (1i) owned by itCompany, (2ii) in the public domain, or (3iii) rightfully used by the it Company and its successors pursuant to a valid written license and, with respect to Company Intellectual Property owned by Company, Company owns the entire right, title and interest in and to such Company Intellectual Property free and clear of any Liens. To the Knowledge of Company, Company has all rights in the Company Intellectual Property necessary to carry out Company's current, former, and anticipated future (up to the Closing) activities, including rights to make, use, exclude others from using, sell, 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 Company Intellectual Property in all geographic locations and fields of use, and to sublicense any or other agreementall such rights to third parties, including the right to grant further sublicenses.
(iiic) BPO All right and title in the patents and applications thereto included in the Company Intellectual Property ("PATENTS") are owned exclusively by Company. To the Knowledge of Company, the inventions which are the subject of the Patents were not known or used by Company or its employees or agents or by third parties in any country before the invention thereof by said employees or agents. To the Knowledge of Company, the inventions which are the subject of the Patents were not patented or described in a printed publication in any country or placed in public use or on sale in any country more than one year prior to the date of application for patents by Company. To the Knowledge of Company there is no prior art more relevant to the inventions which are the subject of the Patents than that considered by the relevant patent office during the prosecution of the patent applications and patents for the inventions which are the subject of the Patents.
(d) Company is not, nor, as a result of the execution or delivery of this Agreement and/or the ancillary agreementsAgreement, nor the or performance of its Company's obligations under them hereunder, will cause it to be Company be, in violation of any license, sublicense or other agreement relating to the INTELLECTUAL PROPERTY or of any non-disclosure agreement to which it Company is a party or otherwise bound.
(iv) BPO . Company is not obligated to provide any consideration (whether financial consideration or other consideration otherwise) to any third party, nor is any third party otherwise entitled to any financial consideration or other consideration, with respect to any exercise of rights by it Company or its successors Buyer in the INTELLECTUAL PROPERTYCompany Intellectual Property.
(ve) BPO's useTo the knowledge of Company, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any OWNED INTELLECTUAL PROPERTY by it or its licensees the Company Intellectual Property does not infringeinfringe on any patent, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, company name, logo, trade dress, databxxx right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any LICENSED INTELLECTUAL PROPERTY or any other authorized exercise of rights in or to LICENSED INTELLECTUAL PROPERTY by it or its licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service markxxxx, trade name, firm name, logo, trade dress, mask work, or moral rightrights, database right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any personPerson. Further, the distribution, licensing, sublicensing, sale, or other provision of products and services by it or its resellers or licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right of any person.
(vi) No action, suit or proceeding, pending or otherwise, claims (i) challenging the validity, enforceabilityeffectiveness, or ownership by it Company of any of OWNED INTELLECTUAL PROPERTY the Company Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale Company Intellectual Property infringes or any other exercise of rights in any OWNED INTELLECTUAL PROPERTY by it or its licensees infringes, misappropriates or violates will infringe on any intellectual property or other proprietary or personal right of any person is pending or is threatened by any person. Further, no claim to have been asserted against the effect that the distribution, licensing, sublicensing, sale or other provision of products and services by it or its resellers or licensees infringes, misappropriates or violates any intellectual property or other proprietary or personal right of any person is pending Company or, to the knowledge Knowledge of BPOCompany, is are threatened by any personperson against the Company nor to the Knowledge of Company are there any valid grounds for any bona fide claim of any such kind against the Company. There All granted or issued patents and mask works and all trademarks and copyrights held by Company are valid, enforceable and subsisting, and all patent applications, provisional patents, copyright applications and trademark applications with respect to the Company Intellectual Property are pending and in good standing, all without challenge of any kind; and no aspect thereof is subject to any outstanding order, ruling, decree, judgment or stipulation by or with any governmental authority or arbitrator. To the Knowledge of Company, there is no material unauthorized use, infringement or misappropriation of any of OWNED INTELLECTUAL PROPERTY the Company Intellectual Property by any third party, employee or former employee.
(viif) No other party has any security interest in any Intellectual Property.
(viii) BPO Company has secured from all parties who have created any portion of, or otherwise have any rights in or to, OWNED INTELLECTUAL PROPERTY, other than employees of itself whose work product was created by them entirely within the scope of their employment by it Company Intellectual Property valid and constitutes work made for hire owned by it, valid enforceable written assignments or licenses of any such work or other rights to it that are enforceable by it and has made available true and complete copies of such assignments or licenses to the PURCHASERCompany.
(ixg) BPO owns all rightAll software included in the Company Intellectual Property relating to any critical business function of the Company, title other than any software included in any products sold by the Company at any time prior to a date one year prior to Closing, is year 2000 Compliant ("YEAR 2000 COMPLIANT"). All software included in any products sold by the Company was purchased from and interest in warranted by third party vendors. Year 2000 Compliant means date information that accurately processes date/time data (including storing, calculating, comparing, and to all data it collects from or discloses about users of its products sequencing) from, into, and services. Its practices regarding between the collection twentieth and use of consumer personal information are in accordance in all respects with applicable laws twenty-first centuries, the years 1999, 2000 and regulations of all jurisdictions in which it operates2001 specifically, and the leap year calculations.
(x) No officer, director, shareholder or employee of BPO, nor any spouse, or relative thereof, owns directly or indirectly, in whole or in part, any INTELLECTUAL PROPERTY.
Appears in 1 contract
Technology and Intellectual Property Rights. (a) Section 3.14(a) the Company Disclosure Letter sets forth a complete and accurate list of all (i) Schedule M contains a list of INTELLECTUAL PROPERTY which includes the following:
(1) all patentsPatents, registered Trademarks, registered Copyrights, Copyright applications for registration, domain namesname registrations, trademarks, trade names, trade dress and service markssocial media accounts, and any applications other registered or applied for Technology and registrations for any of the foregoing, that is included in the OWNED INTELLECTUAL PROPERTY;
(2) all registered and unregistered copyrights, and applications for registered copyrights for any OWNED INTELLECTUAL PROPERTY;
(3) all material products and services that currently are published and/or offered by it, or Intellectual Property Rights that are currently under development owned by it the Company (collectively the “Registered IP”), listing for each entry the owner(s), jurisdiction(s) and scheduled to be commercially released or offered prior to the CLOSING DATE;
(4registration and application number(s) all licenses and sublicenses of the OWNED INTELLECTUAL PROPERTY;
(5) all LICENSED INTELLECTUAL PROPERTY and any sublicenses theretodate(s); and
(6) any material obligation of exclusivity, non-competition, non-solicitation, first negotiation or "most favoured nation" or "equally favoured nation" (e.g., obligating it to provide terms as favourable or more favourable as granted to others) to which it is subject under any agreement that does not fall within the ambit of (4) or (5) in this paragraph.
(ii) BPO has the right to use all INTELLECTUAL PROPERTY used or held for use in the conduct of its business without any conflict with the rights of others. All products and technology that have been or currently are published and/or offered by it or are under development by it, and all products and/or technology underlying any and all services that have been or currently are offered by it or are under development by it is either: (1) unregistered Trademarks owned by it, the Company (2“Other IP”) in the public domain, or (3) rightfully used by the it pursuant to a valid written license or other agreement.
and (iii) BPO material proprietary Software and IT Systems. All Registered IP and Other IP is notvalid, as a result of the execution or delivery of this Agreement and/or the ancillary agreements, nor the performance of its obligations under them will cause it to be in violation of any license, sublicense or other agreement relating to the INTELLECTUAL PROPERTY or of any non-disclosure agreement to which it is a party or otherwise bound.
(iv) BPO is not obligated to provide any financial consideration or other consideration to any third party, nor is any third party otherwise entitled to any financial consideration or other consideration, enforceable and subsisting. All necessary fees and filings with respect to any exercise material Registered IP have been timely submitted to the relevant intellectual property office or Governmental Entity and Internet domain name registrars to maintain such material Registered IP in full force and effect, including the timely and complete disclosure to the relevant Governmental Entity of rights by it or its successors all prior art known to be material to the patentability of the material Patents in the INTELLECTUAL PROPERTYRegistered IP. No issuance or registration obtained and no application filed by the Company for any Technology or Intellectual Property Rights has been cancelled, abandoned, allowed to lapse or not renewed, except where the Company has, in its reasonable business judgment, decided to cancel, abandon, allow to lapse or not renew such issuance, registration or application. There are no Proceedings (including litigation, interference, reexamination, inter partes review, reissue, oppositions, nullity, or cancellation proceedings) pending that relate to any of the Registered IP and, to the Knowledge of the Company, no such material Proceedings are threatened by any Governmental Entity or any other Person.
(vb) BPO's use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any OWNED INTELLECTUAL PROPERTY by it or its licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, company name, logo, trade dress, databxxx right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any LICENSED INTELLECTUAL PROPERTY or any other authorized exercise of rights in or to LICENSED INTELLECTUAL PROPERTY by it or its licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the distribution, licensing, sublicensing, sale, or other provision of products The Company possesses and services by it or its resellers or licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right of any person.
(vi) No action, suit or proceeding, pending or otherwise, (i) challenging the validity, enforceability, or ownership by it of any of 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 OWNED INTELLECTUAL PROPERTY by it or its licensees infringes, misappropriates or violates any intellectual property or other proprietary or personal right of any person is pending or is threatened by any person. Further, no claim to the effect that the distribution, licensing, sublicensing, sale or other provision of products and services by it or its resellers or licensees infringes, misappropriates or violates any intellectual property or other proprietary or personal right of any person is pending or, to the knowledge of BPO, is threatened by any person. There is no unauthorized use, infringement or misappropriation of any of OWNED INTELLECTUAL PROPERTY by any third party, employee or former employee.
(vii) No other party has any security interest in any Intellectual Property.
(viii) BPO has secured from all parties who have created any portion of, or otherwise have any rights in or to, OWNED INTELLECTUAL PROPERTY, other than employees of itself whose work product was created by them entirely within the scope of their employment by it and constitutes work made for hire owned by it, valid written assignments or licenses of any such work or other rights to it that are enforceable by it and has made available true and complete copies of such assignments or licenses to the PURCHASER.
(ix) BPO exclusively owns all right, title and interest in and to all data it collects from Company Owned IPR or discloses about users has a valid and enforceable license to use, sell and license, as the case may be, all other Technology, Intellectual Property Rights and IT Systems as used, sold, or licensed in the Business or that are otherwise necessary for the conduct of the Business, in each case, free and clear of all Liens (other than Permitted Liens), and none of the foregoing will be impaired, altered or otherwise impacted by (nor will require any consent, notification, approval, waiver, or payment or grant of additional amounts or consideration as a result of) the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. For all Patents owned by the Company, each inventor on the Patent has assigned its products and servicesrights to a member of the Company. Its practices regarding the collection and The Company is not subject to any outstanding Order that would restrict its use of consumer personal information any Technology, Intellectual Property Rights or IT Systems as used, sold or licensed in the Business or that are in accordance in all respects with applicable laws and regulations otherwise necessary for the conduct of all jurisdictions in which it operatesthe Business, or would impair the validity or enforceability of any Company Owned IPR.
(xc) The Company has taken all necessary and otherwise reasonable steps to protect and preserve the confidentiality and value of all Trade Secrets (including source code for proprietary Software and Know-How) held by it or otherwise used in the Business (and that a complete copy of all Company Core Software Assets (including the source code comprised therein) is in the Company’s sole possession). No officersuch Trade Secret has been disclosed (or authorized or threatened to be disclosed) to any third Person other than pursuant to the terms of a valid, directorwritten confidentiality agreement with such Person that (i) obligates such Person to maintain the confidentiality thereof, shareholder (ii) imposes perpetual confidentiality obligations with respect to Trade Secrets, and (iii) is in full force and effect, not breached, and legally enforceable by the Company.
(d) The use of the Company Owned IPR, or the conduct of the Business (including the design, development, manufacture, marketing, licensing, sale, re-sale, offer for sale (or re-sale), use, distribution or importation of the Company’s products (including any Company Products, Company Core Software Assets or Technology) and services) has not infringed, misappropriated, diluted, used without authorization, or otherwise violated and do not infringe, misappropriate, dilute, use without authorization, or otherwise violate any Intellectual Property Rights of any Person. There are no actual, pending or, to the Knowledge of the Company, threatened, Claims or Proceedings (and the Company has not received notice) either (i) alleging any infringement, misappropriation, dilution, use without authorization, or other violation of Intellectual Property Rights by, or in connection with the Company, or (ii) challenging the use, ownership, validity or enforceability of any Company Owned IPR (including any Company Core Software Assets).
(e) To the Knowledge of the Company, no Person is infringing, misappropriating, diluting, using without authorization, or otherwise violating any Company Owned IPR and the Company has not made any Claim alleging the foregoing.
(f) None of Shareholders or their respective Affiliates (other than the Company) (i) has any rights in or to any Company Owned IPR or any other Technology or Intellectual Property Rights used (or held for use) in the conduct of the Business or (ii) is a party to any Contract involving any such Technology or Intellectual Property Rights.
(g) The Company has executed valid and enforceable written agreements with all Persons (including all of its past and present employees, consultants and independent contractors) who are or would reasonably be expected to be privy to any Trade Secrets of the Company or who have contributed or are contributing to the creation or development of any Company Owned IPR pursuant to which such Persons have, respectively, (i) agreed to hold all Trade Secrets and other confidential information of the Company in confidence both during and after their employment or retention, as applicable, and (ii) presently assigned to the Company all of such Person’s rights, title and interest in and to all Technology or Intellectual Property Rights created, conceived, or developed for the Company in the course of their employment or retention thereby (or all such rights, title and interest have vested or will vest in the Company by operation of Law). No party thereto is in default or breach of such agreement.
(h) The Company has obtained, possesses and is in compliance with valid licenses to use all of the Software (including Company Core Software Assets) present on the computers and other Software-enabled electronic devices that it owns or leases or that is otherwise used by Company or its employees or contractors in connection with the Business, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company. The Company has not disclosed or delivered to any escrow agent or any other Person, other than employees or contractors who are subject to confidentiality obligations, any of the source code that is Company Owned IPR comprised in the Company Core Software Assets, and no other Person has the right, contingent or otherwise, to obtain access to or use any such source code. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or both) will, or would reasonably be expected to, result in the delivery, license or disclosure of any source code that is owned by the Company or otherwise constitutes Company Owned IPR or Company Core Software Assets to any Person who is not, as of the date the event occurs or circumstance or condition comes into existence, a current employee or contractor of BPOthe Company subject to confidentiality obligations with respect thereto.
(i) The Company has, since its inception implemented adequate practices and commercially reasonable security consistent with Data Protection Requirements to ensure the confidentiality, integrity and availability of the Company IT Systems and the data and information thereon (including Personal Data, proprietary or sensitive business information, and Company Owned IPR). The Company IT Systems (i) constitute all IT Systems used in and necessary for the operation of the Business, (ii) are adequate for, and operate and perform in material conformance with their documentation and functional specifications; (iii) operate and perform in all material respects as currently required and as currently contemplated to be required to conduct and operate the Business; (iv) are free from any material software defect; (v) have been maintained in all material respects in accordance with the Company’s internal standards as well as any applicable warranties or other user instructions from suppliers; and (vi) do not contain any “time bombs,” “Trojan horses,” “back doors,” “trap doors,” worms, viruses, spyware, keylogger software, or other vulnerability, faults or malicious code or damaging devices designed or reasonably expected to adversely impact the functionality of or permit unauthorized access or to disable or otherwise harm any computer, Software or other IT Systems. The Company has implemented reasonable backup, anti-virus, security and disaster recovery technology, policies and procedures.
(j) The Company has implemented commercially reasonable practices regarding Data Protection Requirements and the collection, use, processing, disclosure, confidentiality, integrity and availability of IT Systems and the data and information thereon (including Personal Data, proprietary or sensitive business information, and Company Owned IPR). The Company is in compliance in all material respects with all Data Protection Requirements and the consummation of the transactions contemplated by this Agreement will not result in the violation of any such Data Protection Requirements. There are and have been no Claims or Proceedings commenced, ongoing, pending or threatened, alleging a breach of any Data Protection Requirement (or otherwise concerning the data privacy practices of the Company). There has been no loss, damage, or unauthorized access, use, modification, or breach of security of Personal Data, or other sensitive data (including Company Owned IPR), maintained or collected by, or on behalf of, the Company. No member of the Company has received any notice of any claims, investigations, or alleged violations of any Data Protection Requirement, nor any spousehas the Company notified in writing, or relative thereof, owns directly or indirectly, been required by any Data Protection Requirement to notify in whole or in partwriting, any INTELLECTUAL PROPERTYperson or entity of any Personal Data or information security-related incident.
Appears in 1 contract
Technology and Intellectual Property Rights. (i) Schedule M E contains a list of INTELLECTUAL PROPERTY SCM Intellectual Property which includes the following:
(1A) all patents, domain names, trademarks, trade names, trade dress and service marks, and any applications and registrations for any of the foregoing, that is included in the OWNED INTELLECTUAL PROPERTYOwned Intellectual Property;
(2B) all registered and unregistered copyrights, and applications for registered copyrights for any OWNED INTELLECTUAL PROPERTYOwned Intellectual Property;
(3C) all material products and services that currently are published and/or offered by itSCM, or that are currently under development by it SCM and scheduled to be commercially released or offered prior to within six (6) months of the CLOSING DATEClosing Date;
(4D) all material licenses and sublicenses of the OWNED INTELLECTUAL PROPERTYOwned Intellectual Property;
(5E) all LICENSED INTELLECTUAL PROPERTY Licensed Intellectual Property (other than license agreements for standard "shrink wrapped, off the shelf," commercially available, third party products used by SCM) and any sublicenses thereto; and
(6F) any material obligation of exclusivity, non-competition, non-solicitation, first negotiation or "most favoured nation" or "equally favoured nation" (e.g., obligating it SCM to provide terms as favourable or more favourable as granted to others) to which it SCM is subject under any agreement that does not fall within the ambit of (4D) or (5E) in this paragraph.
(ii) BPO SCM owns or has the right to use all INTELLECTUAL PROPERTY SCM Intellectual Property used or held for use in the conduct of its business without any conflict with the rights of others. All products and technology that have been or currently are published and/or offered by it SCM or are under development by itSCM, and all products and/or technology underlying any and all services that have been or currently are offered by it SCM or are under development by it SCM is either: (1) owned by itsuch SCM, (2) in the public domain, or (3) rightfully used by the it SCM pursuant to a valid written license or other agreement.
(iii) BPO SCM is not, as a result of the execution or delivery of this Agreement and/or the ancillary agreementsGroup Structure Agreements, nor the performance of its SCM's obligations under them the Group Structure Agreements will cause it to SCM be in violation of any license, sublicense or other agreement relating to the INTELLECTUAL PROPERTY SCM Intellectual Property or of any non-disclosure agreement to which it SCM is a party or otherwise bound.
(iv) BPO SCM is not obligated to provide any financial consideration or other consideration to any third party, nor is any third party otherwise entitled to any financial consideration or other consideration, with respect to any exercise of rights by it SCM or its successors in the INTELLECTUAL PROPERTYSCM Intellectual Property.
(v) BPOSCM's use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any OWNED INTELLECTUAL PROPERTY Owned Intellectual Property by it SCM or its licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service markxxxx, trade name, company firm name, logo, trade dress, databxxx database right, moral rights, rights to use likeness, other intellectual property rightrights, right of privacy, right of publicity or right in personal or other data of any person. Further, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any LICENSED INTELLECTUAL PROPERTY Licensed Intellectual Property or any other authorized exercise of rights in or to LICENSED INTELLECTUAL PROPERTY Licensed Intellectual Property by it SCM or its their licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service markxxxx, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the distribution, licensing, sublicensing, sale, or other provision of products and services by it SCM or its resellers or licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service markxxxx, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person.
(vi) No action, suit or proceeding, pending or otherwise, proceeding (i) challenging the validity, enforceability, or ownership by it SCM of any of OWNED INTELLECTUAL PROPERTY 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 OWNED INTELLECTUAL PROPERTY Owned Intellectual Property by it SCM or its licensees infringes, misappropriates misappropriate or violates any intellectual property or other proprietary or personal right of any person is pending or is threatened by any person. Further, no claim to the effect that the distribution, licensing, sublicensing, sale or other provision of products and services by it SCM or its resellers or licensees infringes, misappropriates or violates any intellectual property or other proprietary or personal right of any person is pending or, to the knowledge of BPOWGQ and the Vendor, is threatened by any person. There is no unauthorized use, infringement or misappropriation of any of OWNED INTELLECTUAL PROPERTY Owned Intellectual Property by any third party, employee or former employeeemployee to the best knowledge of the Vendor.
(vii) No other party has any security interest interests in any SCM Intellectual Property.
(viii) BPO SCM has secured from all parties who have created any portion of, or otherwise have any rights in or to, OWNED INTELLECTUAL PROPERTYOwned Intellectual Property, other than employees of itself SCM whose work product was created by them entirely within the scope of their employment by it SCM and constitutes work made for hire owned by itSCM, valid written assignments or licenses of any such work or other rights to it SCM that are enforceable by it SCM and has made available true and complete copies of such assignments or licenses to the PURCHASERInvestors.
(ix) BPO SCM owns all right, title and interest in and to all data it collects SCM collect from or discloses about users of its products and services. Its SCM's practices regarding the collection and use of consumer personal information are in accordance in all respects with applicable laws and regulations of all jurisdictions in which it SCM operates.
(x) No officer, director, shareholder stockholder or employee of BPOSCM, nor any spouse, or relative thereof, owns directly or indirectly, in whole or in part, any INTELLECTUAL PROPERTYSCM Intellectual Property.
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Samples: Loan and Share Purchase Agreement (Xinhua Finance Media LTD)
Technology and Intellectual Property Rights. (i) Schedule M contains a list of INTELLECTUAL PROPERTY which includes the following:
(1) all patents, domain names, All trademarks, trade names, trade dress and service marks, copyrights and any renewal rights therefor (excluding any right of whatever kind relating to "ABB", "BBC", "Asea" or "Xxxxx Boveri", including any such name spelled in upper or lower case or any combination thereof, or any names confusingly similar thereto or any combination of such names), software, schematics, manufacturing processes, know-how, applications for any of the foregoing, that are in (including in the development of) any product, technology or process (i) currently being or formerly (but not prior to January 1, 1995) manufactured, developed or marketed by Company with respect to the business of Company, or (ii) previously (but not prior to January 1, 1995) or currently under development for possible future manufacturing, development, marketing or other use by Company with respect to the business of Company and set forth in SCHEDULE 3.12 will hereinafter be referred to as the "COMPANY INTELLECTUAL PROPERTY."
(a) SCHEDULE 3.12(a) lists: (i) all trademarks and any applications and registrations for any of the foregoing, that is foregoing included in the OWNED INTELLECTUAL PROPERTY;
Company Intellectual Property, together with a list of all of Company's currently manufactured products and currently published software products, (2) all registered and unregistered copyrights, and applications for registered copyrights for any OWNED INTELLECTUAL PROPERTY;
(3ii) all material products written licenses, sublicenses and services that currently are published and/or offered by itother agreements to which Company is a party and pursuant to which Company or any other person is authorized to use any of the Company Intellectual Property, or that are currently under development by it and scheduled to be commercially released or offered prior to the CLOSING DATE;
(4iii) all licenses and sublicenses of the OWNED INTELLECTUAL PROPERTY;
(5) all LICENSED INTELLECTUAL PROPERTY and any sublicenses thereto; and
(6) any material obligation of exclusivity, non-competition, non-solicitation, first negotiation or "most favoured nation" or "equally favoured nation" (e.g., obligating it to provide terms as favourable or more favourable as granted to others) to which it is subject under any agreement that does not fall within the ambit of (4) or (5) in this paragraphdevelopment agreements entered into by Company.
(iib) BPO has Except as set forth in SCHEDULE 3.12(b), the right to use all INTELLECTUAL PROPERTY used or held for use in the conduct Company Intellectual Property consists solely of its business without any conflict with the items and rights of others. All products and technology that have been or currently are published and/or offered by it or are under development by it, and all products and/or technology underlying any and all services that have been or currently are offered by it or are under development by it is eitherwhich are: (1i) owned by itCompany, (2ii) in the public domain, or (3iii) to Company's Knowledge, rightfully used by the it Company and its successors pursuant to a valid written license or other agreement.
(iii) BPO is not, as a result of the execution or delivery of this Agreement and/or the ancillary agreements, nor the performance of its obligations under them will cause it to be in violation of any license, sublicense or other agreement relating to the INTELLECTUAL PROPERTY or of any non-disclosure agreement to which it is a party or otherwise bound.
(iv) BPO is not obligated to provide any financial consideration or other consideration to any third party, nor is any third party otherwise entitled to any financial consideration or other considerationand, with respect to Company Intellectual Property owned by Company, Company owns the entire right, title and interest in and to such Company Intellectual Property free and clear of any exercise of Liens. To Company's Knowledge, no Company Intellectual Property is being used which requires a license without such license. To Company's Knowledge, Company has all rights by it or its successors in the INTELLECTUAL PROPERTYCompany Intellectual Property necessary to carry out Company's current, former (but not prior to January 1, 1995), and anticipated future (up to the Closing) activities.
(vc) BPOTo Company's useKnowledge, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any OWNED INTELLECTUAL PROPERTY by it or its licensees the Company Intellectual Property does not infringe, misappropriate or violate infringe on any copyright, patent, trade secret, trademark, service mark, trade name, company name, logo, trade dress, databxxx right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the use, reproduction, modification, distribution, licensing, sublicensing, sale, or any other exercise of rights in any LICENSED INTELLECTUAL PROPERTY or any other authorized exercise of rights in or to LICENSED INTELLECTUAL PROPERTY by it or its licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or right in personal or other data of any person. Further, the distribution, licensing, sublicensing, sale, or other provision of products and services by it or its resellers or licensees does not infringe, misappropriate or violate any copyright, patent, trade secret, trademark, service mark, trade name, firm name, logo, trade dress, moral right, database right, other intellectual property right, right of privacy, right of publicity or proprietary right of any person.
(vi) Person. No action, suit or proceeding, pending or otherwise, claims (i) challenging the validity, enforceabilityeffectiveness, or ownership by it Company of any of OWNED INTELLECTUAL PROPERTY the Company Intellectual Property, or (ii) to the effect that the use, reproduction, modification, manufacturing, distribution, licensing, sublicensing, sale Company Intellectual Property infringes or any other exercise of rights in any OWNED INTELLECTUAL PROPERTY by it or its licensees infringes, misappropriates or violates will infringe on any intellectual property or other proprietary or personal right of any person is pending or is threatened by any person. Further, no claim to the effect that the distribution, licensing, sublicensing, sale or other provision of products and services by it or its resellers or licensees infringes, misappropriates or violates any intellectual property or other proprietary or personal right of any person is pending have been asserted or, to the knowledge Knowledge of BPOCompany, is are threatened by any personperson nor to the Knowledge of Company are there any valid grounds for any bona fide claim of any such kind. There All trademarks held by Company are valid and enforceable, and all trademark applications with respect to the Company Intellectual Property are pending and all applicable administrative actions, including the payment of fees and filing of applicable documentation, have been taken, all without challenge of any kind; and no aspect thereof is subject to any outstanding order, ruling, decree, judgment or stipulation by or with any governmental authority or arbitrator. To the Knowledge of Company, there is no material unauthorized use, infringement or misappropriation of any of OWNED INTELLECTUAL PROPERTY the Company Intellectual Property by any third party, employee or former employee.
(viid) No other party Company has any security interest in any Intellectual Property.
(viii) BPO has secured provided to Buyer all written assignments from all parties who have created any portion of, or otherwise have any rights in or to, OWNED INTELLECTUAL PROPERTY, other than employees of itself whose work product was created by them entirely within the scope of their employment by it and constitutes work made for hire owned by it, valid written assignments or licenses of any such work Company Intellectual Property or other rights to it that are enforceable by it and has made available true and complete copies of such assignments or licenses to the PURCHASERCompany.
(ix) BPO owns all right, title and interest in and to all data it collects from or discloses about users of its products and services. Its practices regarding the collection and use of consumer personal information are in accordance in all respects with applicable laws and regulations of all jurisdictions in which it operates.
(x) No officer, director, shareholder or employee of BPO, nor any spouse, or relative thereof, owns directly or indirectly, in whole or in part, any INTELLECTUAL PROPERTY.
Appears in 1 contract
