Common use of Use of Trade Names and Trade Marks Clause in Contracts

Use of Trade Names and Trade Marks. (a) Except as otherwise provided herein, after the Closing, Purchaser shall (and shall cause Purchaser’s Affiliates to) refrain from using any of the Excluded Sellers’ IP, and any other Intellectual Property Rights of Sellers or their Subsidiaries not specifically acquired hereunder (including by the acquisition of the Purchased Companies by Purchaser and its Subsidiaries). Without limiting the generality of the foregoing, Purchaser shall (and shall cause Purchaser’s Affiliates to) specifically refrain from using in any manner the name “Tyco”, or any variation, derivation, or translation thereof, or any name likely to cause confusion with or dilute such name. For the avoidance of doubt, nothing contained herein shall limit Purchaser from using the name “Earth Tech”. (b) As soon as practical after the Closing, but in no event later than 45 days after the Closing Date, Purchaser shall (and shall cause Purchaser’s Affiliates to), to the extent commercially reasonable and practicable, remove or render illegible all references to the “Tyco” name, or any variation thereof or any related xxxx or logo, appearing on any sales, marketing and shipping materials, and any other goods purchased and acquired hereunder; provided that if such removal or rendering illegible would cause such sales, marketing and shipping materials or such other goods to become unusable, or is otherwise not commercially reasonable and practicable, Purchaser (or Purchaser’s Affiliates) shall be entitled to use such sales, marketing and shipping materials or such other goods in the ordinary course of Purchaser’s business for a period of three (3) consecutive months following the Closing Date without modifying such references. Any use of the “Tyco” name by Purchaser (or Purchaser’s Affiliates) pursuant to this Section 12.5(b) shall: (i) be in conformity with the practices of Sellers and their Subsidiaries as of the Closing Date, (ii) be in a manner that does not in any way harm or disparage Sellers or their Affiliates or the reputation or goodwill of the “Tyco” name, and (iii) be contingent on Purchaser (or Purchaser’s Affiliates) maintaining the quality of goods and services used in connection with the “Tyco” name at a standard at least as high as that of the goods and services offered and sold by Sellers and their Subsidiaries as of the Closing Date. (c) Purchaser acknowledges and agrees that the “Tyco” name is not owned by Sellers, but is licensed to Tyco International Services Holding GmbH by Tyco International Services GmbH pursuant to that certain License Agreement, dated June 29, 2007, a copy of which has been provided to Purchaser (the “License Agreement”). Any use of the “Tyco” name by Purchaser (or Purchaser’s Affiliates) as permitted hereunder is expressly conditioned upon compliance by Purchaser (and Purchaser’s Affiliates) with the relevant provisions of that certain License Agreement applicable to Tyco International Services Holding GmbH. Notwithstanding anything to the contrary herein, and without expanding any right granted to Purchaser and its Affiliates in Section 12.5(b), in the event of a conflict between the terms of this Agreement (as such terms relate to Purchaser’s and its Affiliates’ use of the “Tyco” name) and the terms of the License Agreement, the terms of the License Agreement shall control. (d) As soon as practical after the Closing, but in no event later than one-hundred and twenty (120) days after the Closing Date, Sellers shall (and shall cause their Subsidiaries to) take all required action, including the filing of an amendment to any certificates of incorporation, to change any name of Sellers or their Subsidiaries, if applicable, to a name that does not include the phrase “Earth Tech”, or a phrase confusingly similar thereto. During such one-hundred and twenty-day period, Sellers and their Subsidiaries shall be entitled to continue using any sales, marketing and shipping materials, and to sell off existing inventory of products, that bear the “Earth Tech” name. Any use of the “Earth Tech” name by Sellers or their Subsidiaries pursuant to this Section 12.5(d) shall: (i) be in conformity with the practices of Sellers and their Subsidiaries as of the Closing Date, (ii) be in a manner that does not in any way harm or disparage the reputation or goodwill of the “Earth Tech” name, and (iii) be contingent on Sellers and their Subsidiaries maintaining the quality of goods and services used in connection with the “Earth Tech” name at a standard at least as high as that of the goods and services offered and sold by Sellers and their Subsidiaries as of the Closing Date.

Use of Trade Names and Trade Marks. (a) Except as may be set forth in the Cross-License Agreement, the Transition Services Agreement or otherwise provided herein, after the Closing, Purchaser Buyers shall (and shall cause Purchaser’s Buyers’ Affiliates to) refrain from using any of the Excluded Sellers’ IP, and any other Intellectual Property Rights of Sellers or their Subsidiaries not specifically acquired hereunder (including by the acquisition of the Purchased Companies Acquired Entities by Purchaser and its SubsidiariesBuyers). Without limiting the generality of the foregoing, Purchaser Buyers shall (and shall cause Purchaser’s Buyers’ Affiliates to) specifically refrain from using in any manner the Olympus Brands, the name “TycoOlympus”, or any variation, derivation, or translation thereof, or any name likely to cause confusion with or dilute such name. For the avoidance of doubt, nothing contained herein shall limit Purchaser from using the name “Earth Tech”. (b) As soon as practical after the Closing, but in no event No later than 45 sixty (60) days after the Closing Date, Purchaser Buyers shall (and shall cause Purchaser’s Buyers’ Affiliates to), to the extent commercially reasonable and practicable, remove or render illegible all references to the Olympus Brands, “Tyco” Olympus name, or any variation thereof or any related xxxx or logo, appearing on any sales, marketing and shipping materials, and any other goods purchased and acquired hereunderAcquired Assets; provided that if such removal or rendering illegible would cause such sales, marketing and shipping materials or such other goods to become unusable, or is otherwise not commercially reasonable and practicable, Purchaser Buyers (or Purchaser’s Buyers’ Affiliates) shall be entitled to use such sales, marketing and shipping materials or such other goods in the ordinary course of Purchaser’s Buyers’ business for a period of three six (36) consecutive months following the Closing Date without modifying such references. Any use of the “TycoOlympus” name by Purchaser Buyers (or Purchaser’s Buyers’ Affiliates) pursuant to this Section 12.5(b8.2(b) shall: (i) be in conformity with the practices of Sellers and their Subsidiaries Seller Parties as of the Closing Date, (ii) be in a manner that does not in any way harm or disparage Sellers or their Affiliates or the reputation or goodwill of the “TycoOlympus” name, and (iii) be contingent on Purchaser Buyers (or Purchaser’s Buyers’ Affiliates) maintaining the in all material respects the quality of goods and services used in connection with the “TycoOlympus” name at a standard at least as high as that of the goods and services offered and sold by Sellers and their Subsidiaries Seller Parties as of the Closing Date. (c) Purchaser acknowledges and agrees that . Seller Parent may terminate Buyers’ rights to use the “TycoOlympus” name is not owned by Sellers, but is licensed immediately if any Buyer fails to Tyco International Services Holding GmbH by Tyco International Services GmbH pursuant to that certain License Agreement, dated June 29, 2007, a copy of which has been provided to Purchaser (the “License Agreement”). Any use of the “Tyco” name by Purchaser (or Purchaser’s Affiliates) as permitted hereunder is expressly conditioned upon compliance by Purchaser (and Purchaser’s Affiliates) comply with the relevant provisions of that certain License Agreement applicable to Tyco International Services Holding GmbH. Notwithstanding anything to the contrary herein, and without expanding any right granted to Purchaser and its Affiliates in Section 12.5(b), in the event of a conflict between the terms of this Agreement (as such terms relate to Purchaser’s and its Affiliates’ use of the “Tyco” name) and the terms of the License Agreement, the terms of the License Agreement shall controlforegoing. (d) As soon as practical after the Closing, but in no event later than one-hundred and twenty (120) days after the Closing Date, Sellers shall (and shall cause their Subsidiaries to) take all required action, including the filing of an amendment to any certificates of incorporation, to change any name of Sellers or their Subsidiaries, if applicable, to a name that does not include the phrase “Earth Tech”, or a phrase confusingly similar thereto. During such one-hundred and twenty-day period, Sellers and their Subsidiaries shall be entitled to continue using any sales, marketing and shipping materials, and to sell off existing inventory of products, that bear the “Earth Tech” name. Any use of the “Earth Tech” name by Sellers or their Subsidiaries pursuant to this Section 12.5(d) shall: (i) be in conformity with the practices of Sellers and their Subsidiaries as of the Closing Date, (ii) be in a manner that does not in any way harm or disparage the reputation or goodwill of the “Earth Tech” name, and (iii) be contingent on Sellers and their Subsidiaries maintaining the quality of goods and services used in connection with the “Earth Tech” name at a standard at least as high as that of the goods and services offered and sold by Sellers and their Subsidiaries as of the Closing Date.

Use of Trade Names and Trade Marks. (a) Except as may be set forth in the Cross-License Agreement, the Transition Services Agreement or otherwise provided herein, after the Closing, Purchaser Buyers shall (and shall cause Purchaser’s Buyers’ Affiliates to) refrain from using any of the Excluded Sellers’ IP, and any other Intellectual Property Rights of Sellers or their Subsidiaries not specifically acquired hereunder (including by the acquisition of the Purchased Companies Acquired Entities by Purchaser and its SubsidiariesBuyers). Without limiting the generality of the foregoing, Purchaser Buyers shall (and shall cause Purchaser’s Buyers’ Affiliates to) specifically refrain from using in any manner the Olympus Brands, the name “TycoOlympus”, or any variation, derivation, or translation thereof, or any name likely to cause confusion with or dilute such name. For the avoidance of doubt, nothing contained herein shall limit Purchaser from using the name “Earth Tech”. (b) As soon as practical after the Closing, but in no event No later than 45 sixty (60) days after the Closing Date, Purchaser unless an earlier date is required by the applicable Law, Buyers shall (and shall cause Purchaser’s Buyers’ Affiliates to), to the extent commercially reasonable and practicable, remove or render illegible all references to the Olympus Brands, the “TycoOlympus” name, or any variation thereof or any related xxxx or logo, appearing on any sales, marketing and shipping materials, and any other goods purchased and acquired hereunderAcquired Assets; provided that if such removal or rendering illegible would cause such sales, marketing and shipping materials or such other goods to become unusable, or is otherwise not commercially reasonable and practicable, Purchaser Buyers (or Purchaser’s Buyers’ Affiliates) shall shall, to the extent permitted by applicable Law and solely in the jurisdictions in which Buyers are permitted by applicable Law to market and sell the Products, be entitled to use such sales, marketing and shipping materials or such other goods in the ordinary course of Purchaser’s Buyers’ business for a period of three six (36) consecutive months following the Closing Date without modifying such references. Any To the extent permitted by applicable Law, Buyers (and their distributors and agents) may continue to use the Olympus Brands after such six (6)-month period in connection with the sale of the Products in a country where Buyers (or their distributors and agents) are otherwise permitted by applicable Law to market, promote, distribute and sell the Products until such time as Buyers (or their distributors and agents) obtain the necessary Regulatory Registrations to sell the Products bearing Buyers’ name in such country, provided that (i) immediately after the Effective Date Buyers take all commercially reasonable steps (or, to the extent applicable, cause its distributors or agents to take all commercially reasonable steps) to obtain Regulatory Registrations in all countries where Buyers (or their distributors or agents, as applicable) are required to obtain Regulatory Registrations in order to market, promote, distribute or sell the Products, (ii) no failure to obtain any such Regulatory Registrations is due to the fault of Buyers (or their distributors or agents, as applicable), (iii) the right to use the Olympus Brands in Argentina, Brazil, Mexico and the People’s Republic of China shall terminate eighteen (18) months after the Closing Date, and (iv) the right to use the Olympus Brands in all countries except the countries identified in clause (iii) above shall terminate twelve (12) months after the Closing Date; provided, however, that the right to use the Olympus Brands in two (2) countries designated in writing by Buyer Parent prior to twelve (12) months after Closing (the “Designated Countries”) shall not terminate until eighteen (18) months after the Closing Date if (x) in the writing designating the Designated Countries, Buyer Parent describes in reasonable detail how the Olympus Brands are being used in such countries by Buyers (or its distributors or agents, as applicable) and how they intend to use the Olympus Brands in the Designated Countries and (y) upon request by Seller Parent from time to time, Buyer Parent provides to Seller Parent reasonably detailed information in writing regarding the status of Buyers’ application(s) for Regulatory Registrations in the Designated Countries; provided further, that in any country in which any Seller or any Affiliate of a Seller is acting as Buyers’ distributor or agent, the right to use the Olympus Brands shall, to the extent necessary, last until such time as such Seller or Affiliate of a Seller is no longer acting as Buyers’ distributor or agent. If notwithstanding Buyers (or their distributors or agents, as applicable) commercially reasonable efforts to obtain such Regulatory Registrations, a Regulatory Registration is not obtained within a particular country, Seller Parent shall consider in good faith a written request by Buyers to continue to use the Olympus Brands in such country beyond twelve (12) or eighteen (18)-month period described above, as the case may be, after the Closing Date; provided that such a request, if any, shall be made on a case-by-case basis and be accompanied by a reasonably detailed written description of the reason Buyers are seeking the continuation of such use and the status of Buyers application(s) for Regulatory Registrations in such country and in such a case, Seller Parent shall not unreasonably refuse such request of Buyers. From time to time, upon request of Seller Parent, Buyer Parent shall provide Seller Parent in writing with information concerning the status of Buyers’ application(s) for Regulatory Registrations and Buyers’ use of the Olympus Brands and use of the “TycoOlympus” name. Notwithstanding the foregoing, any use of the “Olympus” name or Olympus Brands by Purchaser Buyers (or Purchaser’s Buyers’ Affiliates) pursuant to this Section 12.5(b8.2(b) shall: (iA) be in conformity with the practices of Sellers Seller Parties as of the Closing Date and their Subsidiaries shall only be used in the same manner as Seller Parties as of the Closing Date, (iiB) be in a manner that does not in any way harm or disparage Sellers Seller Parties or their Affiliates or the reputation or goodwill of the “TycoOlympus” namename or the Olympus Brands, and (iiiC) be contingent on Purchaser Buyers (or Purchaser’s Buyers’ Affiliates) maintaining in all material respects the quality of goods and services used in connection with the “TycoOlympus” name and the Olympus Brands at a standard at least as high as that of the goods and services offered and sold by Sellers and their Subsidiaries as of the Closing Date. (c) Purchaser acknowledges and agrees that the “Tyco” name is not owned by Sellers, but is licensed to Tyco International Services Holding GmbH by Tyco International Services GmbH pursuant to that certain License Agreement, dated June 29, 2007, a copy of which has been provided to Purchaser (the “License Agreement”). Any use of the “Tyco” name by Purchaser (or Purchaser’s Affiliates) as permitted hereunder is expressly conditioned upon compliance by Purchaser (and Purchaser’s Affiliates) with the relevant provisions of that certain License Agreement applicable to Tyco International Services Holding GmbH. Notwithstanding anything to the contrary herein, and without expanding any right granted to Purchaser and its Affiliates in Section 12.5(b), in the event of a conflict between the terms of this Agreement (as such terms relate to Purchaser’s and its Affiliates’ use of the “Tyco” name) and the terms of the License Agreement, the terms of the License Agreement shall control. (d) As soon as practical after the Closing, but in no event later than one-hundred and twenty (120) days after the Closing Date, Sellers shall (and shall cause their Subsidiaries to) take all required action, including the filing of an amendment to any certificates of incorporation, to change any name of Sellers or their Subsidiaries, if applicable, to a name that does not include the phrase “Earth Tech”, or a phrase confusingly similar thereto. During such one-hundred and twenty-day period, Sellers and their Subsidiaries shall be entitled to continue using any sales, marketing and shipping materials, and to sell off existing inventory of products, that bear the “Earth Tech” name. Any use of the “Earth Tech” name by Sellers or their Subsidiaries pursuant to this Section 12.5(d) shall: (i) be in conformity with the practices of Sellers and their Subsidiaries Seller Parties as of the Closing Date, and (iiD) be in only as permitted by any applicable Law without any further action by any Seller. Buyers may not transfer or sublicense to any third party who is not a manner that does distributor or agent of Buyers the right to use, or otherwise permit any usage by such third party of, the Olympus Brands without the prior written consent of Seller Parent, which consent shall not in any way harm or disparage be unreasonably withheld; provided, however, the reputation or goodwill foregoing transfer restriction shall not prohibit the use of the “Earth Tech” name, Olympus Brands as and (iii) be contingent on Sellers and their Subsidiaries maintaining only to the quality of goods and services used extent set forth in this Section 8.2 in connection with a change of ownership or control of Buyer Parent. Seller Parent may terminate Buyers’ rights to use the “Earth TechOlympus” name at a standard at least as high as that of immediately if any Buyer fails to comply with the goods and services offered and sold by Sellers and their Subsidiaries as of the Closing Dateforegoing.