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Common use of Technology and Intellectual Property Clause in Contracts

Technology and Intellectual Property. (a) Schedule 5.13(a) sets forth (i) all the material Intellectual Property, including all pending registrations and applications therefor, that the Purchased Entities own, use or license and (ii) all contracts, agreements or other arrangements under which the Purchased Entities have granted, or are obligated to grant, rights to others to use, reproduce, market or exploit any Intellectual Property. All owned and registered Intellectual Property used by or in connection with the conduct and operation of the businesses relating to the CantaMia Property, including rights to any architectural and engineering plans and designs and any materials relating thereto with respect to the homes, the clubhouse and the grounds in respect of the CantaMia Property (the “CantaMia IP”), are subsisting, and all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect in all material respects. (b) Except as set forth on Schedule 5.13(b), the Purchased Entities own all right, title and interest in and to, or have valid and continuing rights to use, sell and license without limitation including the right to copy, distribute, display, prepare derivative works of any CantaMia IP subject to copyright protection) all material Intellectual Property, Software and other Technology used in the conduct of the business and operations in respect of the Properties as presently conducted, free and clear of all Liens or obligations to others other than Permitted Exceptions. Except as set forth on Schedule 5.13(b), to the Knowledge of Sellers none of the Purchased Entity Assets (including any Intellectual Property of the Purchased Entities as used in connection with their respective businesses, including but not limited to the names of any Purchased Entity or any other Purchased Entity Assets), or the business or operations of the Purchased Entities, infringe upon, misappropriate or otherwise violate any Intellectual Property of any third party in any material respect. To the best of the Sellers’ Knowledge, no third party is infringing on any rights of the Purchased Entities’ Intellectual Property. (c) Except as set forth in Schedule 5.13(c), there is no action, suit, proceeding, hearing, investigation, notice or complaint pending or, to Sellers’ Knowledge, threatened by any third party before any court or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere in the world) relating to any of the Intellectual Property or Technology owned by the Purchased Entities, nor has any claim or demand been made by any third party that (i) challenges the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Purchased Entities or (ii) alleges any infringement, misappropriation, violation, or unfair competition or trade practices by the Purchased Entities of any Intellectual Property or Technology of any third party. (d) The Purchased Entities are in compliance in all material respects with any posted privacy policies and any laws or regulations relating to personally identifiable information.

Appears in 2 contracts

Samples: Master Transaction Agreement (Avatar Holdings Inc), Master Transaction Agreement (Avatar Holdings Inc)

Technology and Intellectual Property. (a) Schedule 5.13(a4.13(a) sets forth a complete and accurate list of (i) all pending applications and registration for Intellectual Property owned by the material Intellectual PropertyCompany in connection with its business, including all (A) each issued patent owned by the Company, (B) each pending registrations patent application filed by or on behalf of the Company, (C) each trademark registration, service xxxx registration, and applications thereforcopyright registration owned by the Company, that (D) each pending application for trademark registration, service xxxx registration, and copyright registration made by or on behalf of the Purchased Entities ownCompany, use and (E) each domain name registered by or license on behalf of the Company and (ii) all contractseach material trade name, agreements or other arrangements under which the Purchased Entities have grantedd/b/a, or are obligated to grantunregistered trademark, rights to others to use, reproduce, market or exploit any Intellectual Property. All owned and registered Intellectual Property unregistered service xxxx used by or the Company in connection with the conduct its business. Schedule 4.13(a) shall also set forth a complete and operation accurate list of all intellectual property of the businesses relating Company not included in the foregoing but nevertheless material to the CantaMia Propertybusiness of the Company. For the purposes of this Section 4.13(a), including rights "material" shall refer to any architectural and engineering plans and designs and any materials relating thereto with respect to what a reasonable investor would consider significant in making an investment decision in the homesCompany. (b) To the Knowledge of the Company, except as disclosed in Schedule 4.13(b), the clubhouse Company owns all right, title and the grounds interest in respect of the CantaMia and to all Intellectual Property (the “CantaMia IP”required to be set forth on Schedule 4.13(a), are . All such Intellectual Property is subsisting, and all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect effect. Except as set forth in all material respectsSchedule 4.13(a), there are, as of the date of this Agreement, no filings, payments or similar actions that must be taken by the Company within 120 days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications. (bc) Except as set forth on Schedule 5.13(b4.13(c), to the Purchased Entities own Knowledge of the Company, the Company owns all right, title and interest in and to, or have has valid and continuing rights to use, sell and license without limitation including the right to copylicense, distribute, display, prepare derivative works of any CantaMia IP subject to copyright protection) all material Intellectual Property, Software and other Technology Property used in the conduct of the business and operations in respect of the Properties Company as presently conducted, free and clear of all Liens or obligations to others other than Permitted Exceptionsothers. Except as set forth on Schedule 5.13(b), to To the Knowledge of Sellers none of the Purchased Entity Assets (including any Intellectual Property of the Purchased Entities as used in connection with their respective businessesCompany, including but not limited to the names of any Purchased Entity or any other Purchased Entity Assets), or the business or and operations of the Purchased EntitiesCompany, its Intellectual Property, its products and services and the designing, development, manufacturing, reproduction, use, marketing, sale, distribution, maintenance and modification of any of the foregoing as presently performed does not infringe upon, misappropriate or otherwise violate any Intellectual Property of any third party in any material respect. To the best of the Sellers’ Knowledge, no third party is infringing on any rights of the Purchased Entities’ Intellectual Propertyparty. (cd) Except with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $10,000 per copy or seat, (ii) distributed as “freeware” or (iii) distributed via Internet access without charge and for use without charge, Schedule 4.13(d) sets forth a list, complete and accurate as of the date of this Agreement, of all agreements pursuant to which the Company licenses in or otherwise is authorized to use all Intellectual Property used in the conduct of the business and operations of the Company as presently conducted. The Company has made available to Purchaser correct, complete and current copies of all such agreements. Except pursuant to the agreements described in clause (i) above or identified on Schedule 4.13(d), the Company is not required, obligated, or under any liability whatsoever to make any payments, to any third party with respect to any Intellectual Property used in the conduct the business and operations of the Company as presently conducted. (e) Except as set forth on Schedule 4.13(e), neither the execution of this Agreement, the consummation of the transactions contemplated by this Agreement, nor the conduct of the business and operations of the Company as presently conducted will result in the Company granting to any third party any right to any Intellectual Property owned by, or licensed to, the Company. Immediately following the Closing, the Company will have the right to exercise all of its current rights under agreements granting rights to the Company with respect to Intellectual Property of a third party to the same extent and in the same manner it would have been able to had the transaction contemplated by this Agreement not occurred, and without the payment of any additional consideration (that would not otherwise have been due but for such transaction) as a result of such transaction and without the necessity of any third party consent as a result of such transaction. (f) Schedule 4.13(f) (as modified by Updated Schedule 4.13(f)) sets forth a complete and accurate list as of the date hereof of all agreements pursuant to which the Company has licensed or sublicensed to a third party for any purpose any Intellectual Property owned or exclusively licensed by the Company other than agreements entered into with clients or liquidity providers in the Ordinary Course of Business. Schedule 4.13(f) (as modified by Updated Schedule 4.13(f)) further sets forth a complete and accurate list as of the date hereof of all agreements to which the Company is a party (other than agreements entered into in the Ordinary Course of Business) (i) limiting its ability to use or exploit fully any Intellectual Property owned by the Company or (ii) containing an agreement to indemnify any other Person against any claim of infringement, violation, misappropriation or unauthorized use of any Intellectual Property of a third party. The Company has made available to Purchaser true, correct and complete copies of each agreement set forth on Schedule 4.13(f), together with all amendments, modifications or supplements thereto. (g) The Company has not, during the past three (3) years, (i) transferred ownership of, (ii) granted any exclusive license of or right to use, or (iii) authorized joint ownership of any Intellectual Property owned by the Company. (h) To the Knowledge of the Company, all of the material Intellectual Property owned by the Company is valid and enforceable. Except as set forth in Schedule 4.13(h), the Company has not, during the three (3) year period ended on the date hereof, brought any action, suit or proceeding or asserted any claim (other than claims that have been resolved to the Company’s satisfaction) against any Person for infringing or misappropriating any Intellectual Property owned by the Company, nor is there any basis for any such action, suit or proceeding. (i) Except as set forth in Schedule 5.13(c4.13(i), there is no action, suit, proceeding, hearing, investigation, written notice or complaint pending or, to Sellers’ Knowledgethe Knowledge of the Company, threatened in writing, by any third party before any court or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere in the world) relating to any of Company’s Intellectual Property, nor, to the Intellectual Property or Technology owned by Knowledge of the Purchased EntitiesCompany, nor has any claim or demand been made by any third party that (i) challenges the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Purchased Entities Company or (ii) alleges any infringement, misappropriation, violation, or unfair competition or trade practices by the Purchased Entities Company of any Intellectual Property or Technology of any third party. (dj) Schedule 4.13(j) sets forth a complete and accurate list as of the date hereof of (i) all Software and computer hardware (other than “off the shelf” hardware and Software that is generally commercially available) that is owned by the Company and (ii) all Software and computer hardware (other than “off the shelf” hardware and Software that is generally commercially available) that is not exclusively owned by the Company and is used in the Business of the Company, excluding Software generally available for an annual license fee of no more than $250,000. Immediately after the Closing, (x) all Software and computer hardware (other than “off the shelf” hardware that is generally commercially available) currently owned exclusively by the Company will continue to be owned exclusively by the Company, (y) the Company will have the same continuing rights to use all Software and computer hardware (other than “off the shelf” hardware and Software that is generally commercially available) that is not currently exclusively owned by the Company and is currently used in the Business and (z) the Software and computer hardware exclusively owned, or licensed, by the Company are sufficient for the conduct of the Business as presently conducted. (k) There are no agreements between the Company and any third party relating to any Intellectual Property of the Company or any third party under which there is, as of the date of this Agreement, any material dispute regarding the scope or performance of such agreement. (l) None of the Company’s Intellectual Property is subject to any outstanding injunction, decree, order, judgment, agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or affects the validity, use or enforceability of any such Intellectual Property. (m) The Purchased Entities Company has taken reasonable measures to protect the confidentiality of all trade secrets owned by the Company that are material to its businesses as currently conducted. The Company has executed valid written agreements with all of its past and present employees who have contributed to the development of Intellectual Property pursuant to which such employees have assigned to the Company all their rights in and to all Intellectual Property they may develop in the course of their employment and agreed to hold all trade secrets and confidential information of the Company in confidence both during and after their employment. The Company has executed valid written agreements with all past and present consultants and independent contractors who have been retained in connection with the development of Intellectual Property by which the consultants and independent contractors have assigned to the Company all their rights in and to such Intellectual Property and agreed to hold all trade secrets and confidential information of the Company in confidence both during and after the term of their engagements. No trade secrets or other confidential information owned by the Company that are material to its businesses as currently conducted that the Company intended to retain in confidence have been disclosed or authorized to be disclosed by the Company to any of its employees or any third party other than pursuant to a written non-disclosure or confidentiality agreement. To the Knowledge of the Company, no employee, consultant or independent contractor of the Company is, as a result of or in the course of such employee’s, consultant’s or independent contractor’s engagement by the Company, in default or breach of any material term of any employment agreement, non-disclosure agreement, assignment of invention agreement or similar agreement. (n) Except as set forth on Schedule 4.13(n), no government funding and no facilities of a university, college, other educational institution or research center were used in the development of any Intellectual Property owned by the Company where, as a result of such funding or the use of such facilities, the government or any university, college, other educational institution or research center has any rights in such Intellectual Property. Except as set forth on Schedule 4.13(n), no current or former employee, consultant or independent contractor of the Company who contributed to the creation or development of any Intellectual Property owned by the Company has performed services for the government or a university, college, other educational institution or research center during a period of time during which such employee, consultant or independent contractor was also performing services for the Company. (o) Except as set forth on Schedule 4.13(o), no public library or open source licensed Software, including, but not limited to, any version of any Software licensed pursuant to any GNU public license, is integrated into, combined with, incorporated in, or bundled with, any Software owned or licensed by the Company that is incorporated into or utilized by any products or services of the Company where, as a result of the use of such open source or public library licensed Software, the Company is obligated to make available to third parties the source code for the proprietary Software owned or licensed by the Company that is incorporated into such products or services. (p) To the Knowledge of the Company, none of the Software owned or licensed by the Company contains any program routine, device, or other undisclosed feature, including a time bomb, virus, drop-dead device, malicious logic, worm, trojan horse, bug, keylogger, error, defect, trap door, or other malware of any kind that is designed to delete, disable, deactivate, interfere with, or otherwise harm the Software or the hardware, data, or computer programs or codes of a user of such Software, or that is designed to provide access or produce modifications not authorized by such user. (q) Except as set forth on Schedule 4.13(q), the information technology systems of the Company, including the relevant Software and hardware, are adequate for the Company’s business as presently conducted. The information technology systems of the Company have not suffered any material failure during the past three (3) years. (r) The information technology systems of the Company are reasonably secure against intrusion, commensurate with the representations made within client contracts and in compliance in all material respects with applicable Law. To the Knowledge of the Company, the Company has not suffered any security breaches during the past three (3) years that have resulted in a third party obtaining access to any confidential information of the Company, or any of their customers or suppliers. The Company has no pending legal or regulatory, letters of inquiry, claims, proceedings or cases, or, to the Knowledge of the Company, investigations regarding the Company’s data security. To the Knowledge of the Company, the Company is not under audit or examination by any of its clients, business partners or Governmental Body concerning its data security. (s) The Company is in compliance in all material respects with any posted privacy policies and any laws Laws or regulations relating to personally identifiable information.

Appears in 1 contract

Samples: Stock Purchase Agreement (Global Brokerage, Inc.)

Technology and Intellectual Property. (a) Schedule 5.13(a) sets forth (i) all the material Intellectual Property, including all pending registrations and applications therefor, that the Purchased Entities own, use or license and (ii) all contracts, agreements or other arrangements under which the Purchased Entities have granted, or are obligated to grant, rights to others to use, reproduce, market or exploit any Intellectual Property. All owned and registered Intellectual Property used by or in connection with the conduct and operation of the businesses relating to the CantaMia Property, including rights to any architectural and engineering plans and designs and any materials relating thereto Except with respect to the homesSeller Marks, the clubhouse Schedule 4.14(a) sets forth a list of all patents, registered trademarks, registered service marks, domain names, registered mask works, registered designs and the grounds in respect of the CantaMia Property (the “CantaMia IP”), are subsistingregistered copyrights, and pending applications therefor, owned by (i) any Company, or (ii) any Seller or Affiliate of any Seller that are included in the Company Technology and Intellectual Property. To Sellers’ Knowledge, all necessary registered patents, trademarks, service marks and copyrights listed on Schedule 4.14(a) are valid and subsisting and in full force and effect, except that Sellers make no representation regarding those items marked as “inactive” on Schedule 4.14(a). All registration, maintenance, renewal, maintenance and other relevant filing renewal fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect in all material respects. (b) Except as set forth on Schedule 5.13(b), the Purchased Entities own all right, title and interest in and to, or have valid and continuing rights to use, sell and license without limitation including the right to copy, distribute, display, prepare derivative works of any CantaMia IP subject to copyright protection) all material Intellectual Property, Software and other Technology used in the conduct of the business and operations in respect of the Properties as presently conducted, free and clear of all Liens or obligations to others other than Permitted Exceptions. Except as set forth on Schedule 5.13(b), to the Knowledge of Sellers none of the Purchased Entity Assets (including any Intellectual Property of the Purchased Entities as used in connection with their respective businesses, including but not limited to the names of any Purchased Entity or any other Purchased Entity Assets), or the business or operations of the Purchased Entities, infringe upon, misappropriate or otherwise violate any Intellectual Property of any third party in any material respect. To the best of the Sellers’ Knowledge, no third party is infringing on any rights of the Purchased Entities’ Intellectual Property. (c) Except as set forth in Schedule 5.13(c), there is no action, suit, proceeding, hearing, investigation, notice or complaint pending or, to Sellers’ Knowledge, threatened by any third party before any court or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere foreign patent and trademark office in the worldrelevant foreign jurisdiction for the purposes of maintaining the intellectual property identified on Schedule 4.14(a), except that Sellers make no representation regarding those items marked as “inactive” on Schedule 4.14(a). (b) relating Schedule 4.14(b) sets forth a list of all material software (excluding “off-the-shelf” commercially available software) the rights of which are owned by any Company and which is necessary to conduct the Businesses. (c) Schedule 4.14(c) sets forth a list of all licenses (i) to any Company for the use of Company Technology and Intellectual Property material to the operation of the Businesses as currently conducted (other than licenses of software available for an annual license fee of no more than $25,000), (ii) to any third Person by any Company for the use of Company Technology and Intellectual Property owned by any Company, and (iii) all licenses, databases and Technology service agreements for Company Technology and Intellectual Property under which Seller or an Affiliate of Seller is the licensee, owner or contract party receiving services, respectively (the “Corporate Licenses”), identifying which Corporate Licenses will be transferred to a Company at or prior to Closing, and which Corporate Licenses shall be retained by Seller or its Affiliates and not transferred to the Companies, but used to provide services to the Companies under the Transition Services Agreement. (d) Except as and subject to the matters set forth on Schedule 4.14(d): (i) all Company Technology and Intellectual Property is either owned by a Company (free and clear of any Lien, license or other restriction) or licensed by third parties to a Company (to Sellers’ Knowledge, free and clear of any Lien). Company Technology and Intellectual Property (including the Corporate Licenses) is all the Technology and Intellectual Property that is material to the conduct of the Businesses as they have been and are presently conducted; (ii) the licenses listed in Schedule 4.14(c) are in full force and effect and are the legal, valid and binding obligations of a Company, no Company is in default under any of such licenses, and, to the Knowledge of Sellers, no other party to any of such licenses is in breach, default or violation (and no event has occurred or not occurred through any action or inaction of a Company or, to the Intellectual Property Knowledge of Sellers, through the action or Technology owned by the Purchased Entitiesinaction of any third parties, which with notice or lapse of time or both could constitute a breach, default or violation) of any such licenses nor has any Company exercised any termination rights with respect thereto; (iii) subject to the matters set forth on Schedule 4.18, to Sellers’ Knowledge the Companies have not, and the continued operation of the Businesses as presently conducted and as presently proposed to be conducted will not, interfere with, infringe upon, misappropriate or otherwise come into conflict with any Technology or Intellectual Property rights of third parties except as would not, individually or in the aggregate, have a Company Material Adverse Effect, and there are no pending or, to the Knowledge of Sellers, threatened, Legal Proceedings that involve a claim of infringement, unauthorized use, or demand violation of a third party’s Technology or Intellectual Property against any Company, other than those which would not, individually or in the aggregate, have a Company Material Adverse Effect; (iv) there are no pending or, to the Knowledge of Sellers, threatened Legal Proceedings by or against a Company challenging the ownership, use, protectability, registrability, validity or enforceability of any Company Technology and Intellectual Property, and to the Knowledge of Sellers, no Person is infringing, violating, diluting, misusing or misappropriating any material owned Company Technology and Intellectual Property, and no claims have been made against any Person by any third party that Company with respect to such matters; and (iv) challenges except with respect to the validitySeller Marks and subject to the Transition Services Agreement, enforceabilitythe consummation of the transactions contemplated hereby will not result in the loss or impairment of any rights of any Company in or to any Company Technology and Intellectual Property material to the Businesses. (e) The Companies have taken commercially reasonable measures to protect their rights in material trade secrets or unregistered proprietary information included in the Company Technology and Intellectual Property. (f) To Sellers’ Knowledge, use no former or exclusive ownership current employee or consultant of any Company owns, directly or indirectly, any Intellectual Property or Technology relating to the Business authored, developed, created, invented, or reduced to practice (whether solely or jointly with others) by such individual in connection with employment or retention by any Company, and all such Intellectual Property and Technology is included in the Company Intellectual Property and Technology and owned by the Purchased Entities or (ii) alleges any infringement, misappropriation, violation, or unfair competition or trade practices by the Purchased Entities of any Intellectual Property or Technology of any third partya Company. (d) The Purchased Entities are in compliance in all material respects with any posted privacy policies and any laws or regulations relating to personally identifiable information.

Appears in 1 contract

Samples: Stock Purchase Agreement (Hexacomb CORP)

Technology and Intellectual Property. (a) Schedule 5.13(a4.13(a) sets forth a complete and accurate list, as of the date of this Agreement, of all Intellectual Property owned by the Company that is or has been issued by, registered with, renewed by, or the subject of a pending application before, any Governmental Body (i) the “Registered Intellectual Property”), indicating, where applicable, for each such item, the registration or application number and the applicable filing jurisdiction and all the material Intellectual Property, including all pending registrations Software and applications therefor, that other Technology owned by the Purchased Entities own, use Company or license and (ii) all contracts, agreements or other arrangements under which the Purchased Entities have granted, or are obligated to grant, rights to others to use, reproduce, market or exploit any Intellectual Property. All owned and registered Intellectual Property otherwise used by or in connection with the conduct and operation of the businesses relating to the CantaMia Property, including rights to any architectural business and engineering plans and designs and any materials relating thereto with respect to the homes, the clubhouse and the grounds in respect operations of the CantaMia Property Company as presently conducted (the “CantaMia IPBusiness Intellectual Property) (not including any off-the-shelf Software generally available to consumers or Software scheduled pursuant to or expressly excluded from Schedule 4.13(e)). (b) The Company owns all right, are title and interest in and to all Registered Intellectual Property required to be set forth on Schedule 4.13(a). All such Registered Intellectual Property is valid, subsisting, and enforceable, and all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid paid, and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Registered Intellectual Property in full force and effect in all material respects. (b) . Except as set forth on in Schedule 5.13(b4.13(b), there are, as of the Purchased Entities own date of this Agreement, no filings, payments or similar actions that must be taken by the Company within 120 days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any Registered Intellectual Property. Except as further set forth in Schedule 4.13(b), to the Knowledge of the Company, no claim or demand has been made by any third party that challenges the validity, enforceability, use, or exclusive ownership of any Intellectual Property or Technology owned by the Company. (c) The Company owns all right, title and interest in and to, or have valid and continuing rights to use, sell and license without limitation including the right to copylicense, distribute, display, prepare derivative works of any CantaMia IP subject to copyright protection) all material Business Intellectual Property, Software and other Technology used in the conduct of the business and operations in respect of the Properties as presently conducted, free and clear of all Liens or obligations to others (other than Permitted Exceptions. Except as Exceptions or licenses of Intellectual Property set forth on Schedule 5.13(b4.13(f)) or obligations to others. The Business Intellectual Property that the Company owns is not, and, to the Knowledge of Sellers none of the Purchased Entity Assets (including any Company with respect to the Business Intellectual Property of that the Purchased Entities Company does not own, is not, subject to any outstanding Order, Contract or Legal Proceeding adversely affecting or that would reasonable be expected to adversely affect the Company’s use thereof as presently used in connection with their respective businesses, including but not limited or rights to so use the names of any Purchased Entity or any other Purchased Entity Assets), or the business or operations of the Purchased Entities, infringe upon, misappropriate or otherwise violate any Business Intellectual Property of any third party after the Closing. The Company has taken commercially reasonable steps in any material respect. To accordance with normal industry practice to protect the best of the Sellers’ Knowledge, no third party is infringing on any rights of the Purchased Entities’ Business Intellectual Property. (cd) To the Knowledge of the Company, the business and operations of the Company and its Technology, its products and services and the design, development, manufacturing, reproduction, use, marketing, sale, distribution, maintenance and modification of any of the foregoing do not infringe, misappropriate or otherwise violate, and have not infringed, misappropriated or otherwise violated, the Intellectual Property rights of any third party. Except as set forth in Schedule 5.13(c4.13(d), since January 1, 2010, there is have been no actionactions, suitsuits, proceedingproceedings, hearinghearings, investigationinvestigations, notice notices or complaint complaints pending or, to Sellers’ Knowledgethe Knowledge of the Company, threatened threatened, by any third party before any court or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere in the world) relating to any of the Intellectual Property or Technology owned by the Purchased Entities, nor has any claim or demand been made by any third party that (i) challenges the validity, enforceability, use or exclusive ownership of any Intellectual Property or Technology owned by the Purchased Entities or (ii) alleges alleging any infringement, misappropriation, violation, or unfair competition or trade practices by the Purchased Entities Company of any Intellectual Property or Technology of any third party. The Company has (i) complied, in all material respects, with all Internet domain name registration and other requirements of Internet domain administration authorities concerning all Internet domain names that are Business Intellectual Property, and (ii) operated all websites associated with such Internet domain names in accordance with all applicable Laws. The Company is the owner of, or has sufficient rights to display or make available, all content, data, and other information displayed or made available, as applicable, on all websites controlled by the Company included in the Business Intellectual Property. (de) Except with respect to licenses of Software (i) generally available for an annual or one-time license fee of no more than $20,000 in the aggregate, (ii) distributed as “freeware” or (iii) distributed via Internet access without charge and for use without charge, Schedule 4.13(e) sets forth a list, complete and accurate as of the date of this Agreement, of all Software which the Company licenses. Except as set forth on Schedule 4.13(e), the Company is not required, obligated, or under any liability whatsoever to make any payments in excess of $150,000 per year by way of royalties, fees or other payments described in the applicable agreements, to any third party with respect to any item of Business Intellectual Property. (f) Schedule 4.13(f) sets forth a complete and accurate list of all agreements pursuant to which the Company has licensed to a third party for any purpose any Intellectual Property, Software or other Technology owned by or exclusively licensed to the Company. Schedule 4.13(f) further sets forth a complete and accurate list of all agreements to which the Company is a party limiting in any material respect its ability to use or exploit fully any Intellectual Property owned by the Company. The Company has Made Available to Purchaser true, correct and complete copies of each agreement set forth on Schedule 4.13(f), together with all amendments, modifications and supplements thereto. (g) Schedule 4.13(g) sets forth a complete and accurate list of all Software that is owned, in whole or in part, by the Company that is material to the operation of the business of the Company. (h) Except as set forth in Schedule 4.13(h), since January 1, 2010, the Company has not brought any action, suit or proceeding or asserted any claim against any Person alleging infringement or misappropriation of any Technology or Intellectual Property owned by the Company. (i) The Purchased Entities Company has taken adequate measures, consistent with the commercially reasonable practices in the industry in which the Company operates, to protect the confidentiality of all trade secrets owned by the Company that are material to its business as currently conducted. The Company has Made Available to Purchaser correct, complete, and current copies of (i) all employment agreements, non-disclosure agreements, assignment of invention agreements or similar agreements with employees, consultants or independent contractors that relate to protection or ownership of Technology or Intellectual Property or (ii) representative forms of such agreements, along with copies of any agreements that materially deviate from such forms. To the Knowledge of the Company, no employee, consultant or independent contractor of the Company is, as a result of or in compliance the course of such employee’s, consultant’s or independent contractor’s engagement by the Company, in all material respects with default or breach of any posted privacy policies and material term of any laws or regulations relating to personally identifiable informationagreements described in this Section 4.13(i).

Appears in 1 contract

Samples: Stock Purchase Agreement (American Public Education Inc)

Technology and Intellectual Property. (a) Schedule 5.13(a) sets forth (i) all the material Intellectual Property, including all pending registrations and applications therefor, that the Purchased Entities own, use or license and (ii) all contracts, agreements or other arrangements under which the Purchased Entities have granted, or are obligated to grant, rights to others to use, reproduce, market or exploit any Intellectual Property. All owned and registered Intellectual Property used by or in connection with the conduct and operation of the businesses relating to the CantaMia Property, including rights to any architectural and engineering plans and designs and any materials relating thereto Except with respect to the homesSeller Marks, the clubhouse Schedule 4.14(a) sets forth a list of all patents, registered trademarks, registered service marks, domain names, registered mask works, registered designs and the grounds in respect of the CantaMia Property (the “CantaMia IP”), are subsistingregistered copyrights, and pending applications therefor, owned by (i) any Company, or (ii) any Seller or Affiliate of any Seller that are included in the Company Technology and Intellectual Property. To Sellers' Knowledge, all necessary registered patents, trademarks, service marks and copyrights listed on Schedule 4.14(a) are valid and subsisting and in full force and effect, except that Sellers make no representation regarding those items marked as "inactive" on Schedule 4.14(a). All registration, maintenance, renewal, maintenance and other relevant filing renewal fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect in all material respects. (b) Except as set forth on Schedule 5.13(b), the Purchased Entities own all right, title and interest in and to, or have valid and continuing rights to use, sell and license without limitation including the right to copy, distribute, display, prepare derivative works of any CantaMia IP subject to copyright protection) all material Intellectual Property, Software and other Technology used in the conduct of the business and operations in respect of the Properties as presently conducted, free and clear of all Liens or obligations to others other than Permitted Exceptions. Except as set forth on Schedule 5.13(b), to the Knowledge of Sellers none of the Purchased Entity Assets (including any Intellectual Property of the Purchased Entities as used in connection with their respective businesses, including but not limited to the names of any Purchased Entity or any other Purchased Entity Assets), or the business or operations of the Purchased Entities, infringe upon, misappropriate or otherwise violate any Intellectual Property of any third party in any material respect. To the best of the Sellers’ Knowledge, no third party is infringing on any rights of the Purchased Entities’ Intellectual Property. (c) Except as set forth in Schedule 5.13(c), there is no action, suit, proceeding, hearing, investigation, notice or complaint pending or, to Sellers’ Knowledge, threatened by any third party before any court or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere foreign patent and trademark office in the worldrelevant foreign jurisdiction for the purposes of maintaining the intellectual property identified on Schedule 4.14(a), except that Sellers make no representation regarding those items marked as "inactive" on Schedule 4.14(a). (b) relating Schedule 4.14(b) sets forth a list of all material software (excluding "off-the-shelf" commercially available software) the rights of which are owned by any Company and which is necessary to conduct the Businesses. (c) Schedule 4.14(c) sets forth a list of all licenses (i) to any Company for the use of Company Technology and Intellectual Property material to the operation of the Businesses as currently conducted (other than licenses of software available for an annual license fee of no more than $25,000), (ii) to any third Person by any Company for the use of Company Technology and Intellectual Property owned by any Company, and (iii) all licenses, databases and Technology service agreements for Company Technology and Intellectual Property under which Seller or an Affiliate of Seller is the licensee, owner or contract party receiving services, respectively (the "Corporate Licenses"), identifying which Corporate Licenses will be transferred to a Company at or prior to Closing, and which Corporate Licenses shall be retained by Seller or its Affiliates and not transferred to the Companies, but used to provide services to the Companies under the Transition Services Agreement. (d) Except as and subject to the matters set forth on Schedule 4.14(d): (i) all Company Technology and Intellectual Property is either owned by a Company (free and clear of any Lien, license or other restriction) or licensed by third parties to a Company (to Sellers' Knowledge, free and clear of any Lien). Company Technology and Intellectual Property (including the Corporate Licenses) is all the Technology and Intellectual Property that is material to the conduct of the Businesses as they have been and are presently conducted; (ii) the licenses listed in Schedule 4.14(c) are in full force and effect and are the legal, valid and binding obligations of a Company, no Company is in default under any of such licenses, and, to the Knowledge of Sellers, no other party to any of such licenses is in breach, default or violation (and no event has occurred or not occurred through any action or inaction of a Company or, to the Intellectual Property Knowledge of Sellers, through the action or Technology owned by the Purchased Entitiesinaction of any third parties, which with notice or lapse of time or both could constitute a breach, default or violation) of any such licenses nor has any Company exercised any termination rights with respect thereto; (iii) subject to the matters set forth on Schedule 4.18, to Sellers' Knowledge the Companies have not, and the continued operation of the Businesses as presently conducted and as presently proposed to be conducted will not, interfere with, infringe upon, misappropriate or otherwise come into conflict with any Technology or Intellectual Property rights of third parties except as would not, individually or in the aggregate, have a Company Material Adverse Effect, and there are no pending or, to the Knowledge of Sellers, threatened, Legal Proceedings that involve a claim of infringement, unauthorized use, or demand violation of a third party's Technology or Intellectual Property against any Company, other than those which would not, individually or in the aggregate, have a Company Material Adverse Effect; (iv) there are no pending or, to the Knowledge of Sellers, threatened Legal Proceedings by or against a Company challenging the ownership, use, protectability, registrability, validity or enforceability of any Company Technology and Intellectual Property, and to the Knowledge of Sellers, no Person is infringing, violating, diluting, misusing or misappropriating any material owned Company Technology and Intellectual Property, and no claims have been made against any Person by any third party that Company with respect to such matters; and (iv) challenges except with respect to the validitySeller Marks and subject to the Transition Services Agreement, enforceabilitythe consummation of the transactions contemplated hereby will not result in the loss or impairment of any rights of any Company in or to any Company Technology and Intellectual Property material to the Businesses. (e) The Companies have taken commercially reasonable measures to protect their rights in material trade secrets or unregistered proprietary information included in the Company Technology and Intellectual Property. (f) To Sellers' Knowledge, use no former or exclusive ownership current employee or consultant of any Company owns, directly or indirectly, any Intellectual Property or Technology relating to the Business authored, developed, created, invented, or reduced to practice (whether solely or jointly with others) by such individual in connection with employment or retention by any Company, and all such Intellectual Property and Technology is included in the Company Intellectual Property and Technology and owned by the Purchased Entities or (ii) alleges any infringement, misappropriation, violation, or unfair competition or trade practices by the Purchased Entities of any Intellectual Property or Technology of any third partya Company. (d) The Purchased Entities are in compliance in all material respects with any posted privacy policies and any laws or regulations relating to personally identifiable information.

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Samples: Stock Purchase Agreement (Pactiv Corp)