Intellectual Properties. (a) BUYER owns, or is licensed or otherwise has the right to use all Intellectual Properties (other than off-the-shelf software programs that have not been customized for its use) material to and used in or necessary to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other Persons. (b) BUYER's Products, including all software, are free from material defects and perform in substantial accordance with all published specifications (if any). (c) BUYER has not granted any third party any right to license any of BUYER's Products except under valid and binding Software License Agreements. (d) No third party has been licensed to use, or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of business. (e) No product liability or warranty claims have been communicated in writing to or threatened in writing against BUYER, other than those encountered from time to time in the ordinary course of business. (f) To BUYER's knowledge, there is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential information. (g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER. (h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date. (i) Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements. (j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful. (k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation of the transactions contemplated by this Agreement will not alter or impair any such rights. (l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Intellectual Properties. (a) BUYER ownsSchedule 4.12(a) sets forth a listing of all registered or material Company Intellectual Property and all pending applications therefor. No third party has any interest in any Intellectual Property that was developed, or that is licensed or otherwise has in the right to process of being developed, specifically for use all Intellectual Properties (other than off-the-shelf software programs that have not been customized for its use) material to and used in or necessary to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other PersonsCompany.
(b) BUYER's Products, including Schedule 4.12(b) sets forth a listing of all software, are free from material defects written licenses (excluding Off-the-Shelf Software and perform in substantial accordance with all published specifications end user licenses for mass market Software) pursuant to which the Company is a party either as a licensee or licensor and any other Contract under which the Company grants or receives any rights to Intellectual Property (if anythe “Licenses”).
(c) BUYER Except as set forth on Schedule 4.12(c), the Company owns all right, title and interest in and to the registered or material Company Intellectual Property. The registered and material Company Intellectual Property is valid, subsisting, in full force and effect, and has not granted been invalidated cancelled, expired or abandoned or subject to any proceeding asserting the same and, during the five (5) year period ending on the date hereof, no third party has made any claims (written or oral) contesting the use, ownership or enforceability thereof. There are no contracts, sublicenses, agreements, permissions, consents, covenants, or similar agreements or arrangements, whether written or oral, pursuant to which a license, covenant not to ▇▇▇, or similar permission in which any material or registered right to license any of BUYER's Products except under valid and binding Software License Agreementsin Intellectual Property has been granted.
(d) No The Company has a valid and enforceable right or license to use (as currently being used) any material Intellectual Property used in its business that is owned by a third party has been licensed party, subject to use, or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of businessEnforceability Exceptions.
(e) No product liability Neither the registered or warranty claims material Company Intellectual Property nor the material Intellectual Property used but not owned by the Company are subject to any restrictions or limitations (including any outstanding Order) materially restricting in any manner the use, transfer, disclosure or licensing thereof by Seller. Except in connection with those items listed in Schedule 4.12(b), the Company does not have been communicated in writing any current or future obligation to pay any royalty, license fee, honoraria or threatened in writing against BUYER, other than those encountered from time similar consideration to time any third party or to obtain any approval or consent for use of the any registered or material Intellectual Property used in the ordinary course business of businessthe Company.
(f) To BUYER's knowledgeThe Company has not received in the past five (5) years any written notice regarding the violation, there is and has been no material unauthorized use, disclosuredilution, infringement or misappropriation by the Company of any BUYER Intellectual Properties owned by BUYER by Property of any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential information.
(g) To BUYER's knowledgeThe conduct of the Company’s business does not infringe upon or misappropriate any Intellectual Property of any third party, BUYER has not infringed or made unlawful use ofand, and to the Company’s Knowledge, no third party is not infringing or making unlawful use ofhas infringed, misappropriated or otherwise violated any of the material Company Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYERProperty.
(h) To BUYER's knowledgeThe Company has taken all commercially reasonable precautions to protect the secrecy, all confidentiality and value of BUYER's material information technology systems any such trade secrets and material nonknow-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such datehow.
(i) Except as would notWith respect to any copyrights owned or licensed by the Company, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound has obtained from all appropriate Persons written unrestricted waivers of all moral rights with respect to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreementsworks.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation None of the transactions contemplated by this Agreement will not alter or impair any such rights.
(l) As Software used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYERcontains any open source Software.
Appears in 1 contract
Intellectual Properties. All the trademarks, trade names and material copyrights used or required for the proper carrying on of each of the Businesses (athe Intellectual Property) BUYER owns, or is licensed or otherwise are described in Exhibit B-14-1 annexed to this certificate and indemnity. The Seller has the right to use all sell, assign and transfer the Intellectual Properties (other than off-the-shelf software programs that have not been customized for its use) material to and used in or necessary Property to the business of BUYER Buyer as now being conducted herein contemplated. All trademarks and as presently proposed material copyrights described in Exhibit B-14-1 are valid and subsisting, and validly registered by BUYER to be conducted the Seller and such trademarks and copyrights (and any applications in respect thereof) are all owned by the "BUYER INTELLECTUAL PROPERTIES")Seller, free and clear of all liensLiens, claims apart from Permitted Encumbrances. All trademarks and encumbrancestrade names described in Exhibit B-14-2 are unregistered, except for such liensbut nevertheless, claims are valid and encumbrances as do subsisting, owned by the Seller, used by it, free and clear of all Liens, apart from Permitted Encumbrances, and no one has contested or challenged either ownership or use. The Seller has not materially impair BUYER's ability to use, exploit, entered into any oral or written license and distribute such BUYER Intellectual Properties. BUYER possesses (agreements or arrangements under which any Person has been granted or allowed the right to obtain access pursuant use any of the Intellectual Property. No person has threatened or commenced any legal proceeding against the Seller claiming infringement, adverse ownership, invalidity, lack of distinctiveness or conflict with respect to an escrow agreement) any of the source codes Intellectual Property or challenging any rights of the Seller in and to the Intellectual Property, or relating to any trade secrets, know-how confidential or proprietary information or the right of the Seller to use any or all related programs of the Intellectual Property in the conduct of one or more of the Businesses, and documentation sufficient to recreate without limiting the generality of the foregoing the Seller's unregistered trademarks "Dominion Automobile Association", "DAA", "North American Automobile Association", and/or any design incorporating the foregoing, have been adopted and used by the Seller in Canada since at least as early as 1960 without any claim of infringement having been asserted by or against the Seller by or against the current owner, or any predecessor in title or other user of the names or trademarks "Canadian Automobile Association", "CAA", and/or any design incorporating any of the foregoing. To the best of the Seller's knowledge and next most recent versions belief, the conduct of the Business does not infringe upon the trademarks, trade names, designs, copyrights, trade secrets, know-how or confidential or proprietary information of any BUYER Intellectual Properties other Person and no Person is infringing the trademarks, trade names, designs, copyrights, trade secrets, know-how or confidential or proprietary information of the Seller. The foregoing is subject to the qualification that BUYER has licensed from other Persons.
the Seller did receive a certain letter addressed to it by the American Automobile Association in October, 1995, in which the American Automobile Association demands that the Seller cease and desist in its use of the DAA trademark in the United States of America (b) BUYER's Productsthe "AAA Demand"). Notwithstanding the disclosure of the foregoing exception to the Buyer, including all software, are free from material defects the undersigned each acknowledge that their respective indemnities of the Buyer shall apply and perform in substantial accordance with all published specifications (if any).
(c) BUYER has not granted be enforceable against each of the undersigned as a result of any third party any right to license any of BUYER's Products except under valid and binding Software License Agreements.
(d) No third party has been licensed to use, claim or has lawful access to, any source code developed action taken by the American Automobile Association in respect of BUYER's Productsthe use of the DAA trademark to the date hereof, except escrow agreements entered into in the ordinary course of business.
(e) No product liability or warranty claims have been communicated in writing to or threatened in writing against BUYER, other than those encountered from time to and at any time in the ordinary course of business.
(f) To BUYER's knowledge, there future in any manner that is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for consistent with the preservation use of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential information.
(g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided DAA trademark to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreementsdate hereof.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation of the transactions contemplated by this Agreement will not alter or impair any such rights.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Sources: Purchase Agreement (American Bankers Insurance Group Inc)
Intellectual Properties. Schedule 3.14(a) sets forth a complete and correct list of all patented or registered Intellectual Property and pending patent applications or other applications for registration of Intellectual Property, material unregistered trademarks, service marks, trade names, material unregistered copyrights, corporate names, logos and slogans, Internet domain names and material software included in the Company Intellectual Property. Schedule 3.14(b) sets forth all written material licenses pursuant to which Communications or any of its Subsidiaries is a party either as a licensee or licensor and any other material agreements under which Communications or any of its Subsidiaries grant or receive any rights to Intellectual Property. Except as set forth in Schedule 3.14(c):
(a) BUYER ownsCommunications and each of its Subsidiaries owns and possesses all, right, title and interest in and to, or is licensed has a valid and enforceable right or otherwise has the right license to use all the Company Intellectual Properties (other than off-the-shelf software programs that have not been customized for its use) material to and used in or necessary to the business of BUYER Property as now currently being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other Persons.used;
(b) BUYER's Productsexcept for the Permitted Liens, including all software, are free from material defects the Company Intellectual Property is not subject to any Liens and perform in substantial accordance with all published specifications (if any).is not subject to any restrictions or limitations regarding use or disclosure other than pursuant to written license agreements applicable thereto;
(c) BUYER the Company Intellectual Property owned by Communications or its Subsidiaries and, To the Knowledge of Communications, the Company Intellectual Property used by Communications or any of its Subsidiaries, is valid, subsisting, in full force and effect, and has not granted any third party any right to license any of BUYER's Products except under valid and binding Software License Agreements.been cancelled, expired or abandoned;
(d) No third party To the Knowledge of Communications: (i) neither Communications or any of its Subsidiaries has been licensed to useinfringed, misappropriated or has lawful access tootherwise conflicted with, any source code developed in respect Intellectual Property of BUYER's Productsany third party; (ii) the conduct of the businesses as currently conducted by Communications and each of its Subsidiaries does not infringe upon any Intellectual Property owned or controlled by any third party; and (iii) none of the Acquired Companies has received any written notice regarding any of the foregoing (including, except escrow agreements entered into in the ordinary course of business.without limitation, any demands or offers to license any Intellectual Property from any third party);
(e) No product liability To the Knowledge of Communications: (i) no third party has infringed, misappropriated or warranty otherwise conflicted with any of the Company Intellectual Property; and (ii) no such claims have been communicated in writing to brought or threatened in writing against BUYER, other than those encountered from time to time in the ordinary course any third party by Communications or any of business.its Subsidiaries; and
(f) To BUYER's knowledge, there is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential information.
(g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or all licenses listed on Schedule 3.14(b) are in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality full force and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER effect and, to BUYER's knowledgeTo the Knowledge of Communications, of such person, are enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, ; (ii) Communications and each of its Subsidiaries has performed all BUYER Intellectual Properties that are owned obligations required to be performed by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been them pursuant to the terms of a written agreement between BUYER licenses and such third party. All useagreements listed on Schedule 3.14(b); (iii) there is no existing or, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge Knowledge of BUYERCommunications, all threatened default under or violation of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation any of the transactions contemplated licenses or agreements listed on Schedule 3.14(b) by this Agreement any other party thereto and (iv) the Merger will not alter or impair result in the termination of any such rightsof the licenses and agreements listed on Schedule 3.14(b).
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Sources: Merger Agreement (Otelco Inc.)
Intellectual Properties. (a) BUYER owns, or is licensed or otherwise has Section 5.10 of the right to use Disclosure Schedule lists all Intellectual Properties (other than Property used in or necessary to the Company's business as currently conducted that are material to the operation of such business, excluding off-the-shelf software programs that have not been customized for its use) material the Company's use (subject to and used in or necessary to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (such exclusion, the "BUYER INTELLECTUAL PROPERTIESCompany ------- Intellectual Properties"). The Company owns all right, title, and interest ----------------------- (free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (Liens) or has the right to obtain access pursuant to an escrow agreement) use the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Company Intellectual Properties that BUYER has licensed from without payment of royalties or other Personsfurther consideration; and no other Intellectual Property is necessary in the conduct of the business of the Company as currently conducted.
(b) BUYERIn any instance where the Company's Productsrights to Company Intellectual Properties arise under a license or similar agreement, including all softwarethis is indicated in Section 5.10 of the Disclosure Schedule, and these rights by their terms are free from material defects and perform licensed exclusively to the Company except as so indicated. No other person has an interest in substantial accordance with all published specifications (if any)or right or license to use any of the Company Intellectual Properties owned by the Company, or to the Stockholders' knowledge, any of the Company Intellectual Properties that by their terms are licensed exclusively to the Company.
(c) BUYER has All Company Intellectual Properties are in full force and effect and have not granted any third party any right been used or enforced, or failed to license be used or enforced, in a manner that would result in the non-renewal, modification, abandonment, cancellation or unenforceability of any of BUYER's Products except under valid and binding Software License Agreements.
(d) No third party the Company Intellectual Properties. The Company has been licensed to use, renewed or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in made applications for renewal within the ordinary course of business.
(e) No product liability or warranty claims have been communicated in writing to or threatened in writing against BUYER, other than those encountered from time to time in the ordinary course of business.
(f) To BUYER's knowledge, there is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER applicable renewal periods for all registered Company Intellectual Properties owned by BUYER by any third partyor licensed exclusively to the Company. To BUYER's the Stockholders' knowledge, none of BUYER the Company Intellectual Properties owned by BUYER or licensed exclusively to BUYER on an exclusive basis the Company is being infringed by othersany other person, or is subject to any outstanding order, decree, judgment, or stipulation. No adverse claim or litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER any of the Company Intellectual Properties purported to be owned by BUYER the Company, or to the Stockholders' knowledge, any of the Company Intellectual Properties that by their terms are licensed to BUYER on an exclusive basis the Company, is pending, nor or to BUYER's the Stockholders' knowledge, threatened against BUYERthreatened, nor, to the Stockholders' knowledge, is there any basis for any such adverse claim, litigation, or proceeding. BUYER The Company maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such those of its BUYER the Company Intellectual Properties that as constitute trade secrets or other confidential information.
(gd) To BUYER's knowledgeNone of the Company Intellectual Properties infringe or violate, BUYER and neither the Company nor its business as currently conducted has not infringed or made unlawful use of, and is not infringing violated any intellectual property or making unlawful use of, any Intellectual Properties other proprietary or confidential rights or information of any other person. No adverse claim or litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER the Company with infringement or unlawful use violation of any Intellectual Properties intellectual property or other proprietary right is pending, or to BUYER's the Stockholders' knowledge, threatened against BUYERthreatened.
(he) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and The consummation of the transactions contemplated by this Agreement will not alter neither violate nor result in the breach, modification, cancellation, termination, or impair suspension of any such rightsof the Company Intellectual Properties, nor require the consent of any other person.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Intellectual Properties. Schedule 4.14(a) sets forth a complete and correct list of all patented or registered Intellectual Property and pending patent applications or other applications for registration of Intellectual Property and all Internet domain names included in the Company Intellectual Property. Schedule 4.14(a) also sets forth a complete and correct list of all unregistered trademarks, service marks, trade names, unregistered copyrights, corporate names, logos and slogans, and software included in the Company Intellectual Property, in each case that are material to the operation of the Acquired Companies’ business. Schedule 4.14(b) sets forth all written licenses (other than licenses for Computer Software) pursuant to which any of the Acquired Companies is a party either as a licensee or licensor and any other Contracts under which the Acquired Companies grant or receive any rights to Intellectual Property. Schedule 4.14(b) also sets forth a list of all licenses for Computer Software (excluding Desktop Software) with license or user-fees in excess of $10,000. Except as set forth in Schedule 4.14(c):
(a) BUYER ownsthe Acquired Companies own and possess all, right, title and interest in and to, or is licensed have a valid and enforceable right or otherwise has the right license to use all the Company Intellectual Properties (other than off-the-shelf software programs that have Property as currently being used, and the consummation of the transaction contemplated by this Agreement will not been customized for its use) material to and used in conflict with, alter or necessary to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for impair any such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other Persons.rights;
(b) BUYER's Productsexcept for the Permitted Liens, including all software, are free from material defects the Company Intellectual Property is not subject to any Liens and perform in substantial accordance with all published specifications (if any).is not subject to any restrictions or limitations regarding use or disclosure other than pursuant to Contracts identified on Schedule 4.14(b) applicable thereto;
(c) BUYER the Company Intellectual Property owned by any of the Acquired Companies and, to the Company’s Knowledge, the Company Intellectual Property used by any of the Acquired Companies, is valid, subsisting, in full force and effect, and has not granted been cancelled, expired or abandoned;
(i) none of the Acquired Companies has infringed, misappropriated or otherwise conflicted with, any Intellectual Property of any third party party; (ii) the conduct of the business as currently conducted by each Acquired Company does not infringe upon any right Intellectual Property owned or controlled by any third party; and (iii) none of the Acquired Companies has received any written notice regarding any of the foregoing (including, without limitation, any demands or offers to license any of BUYER's Products except under valid and binding Software License Agreements.
(d) No Intellectual Property from any third party has been licensed to use, or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of business.party);
(e) No product liability To the Company’s Knowledge: (i) no third party has infringed, misappropriated or warranty claims otherwise conflicted with any of the Company Intellectual Property; and (ii) no such Claims have been communicated in writing to brought or threatened in writing against BUYER, other than those encountered from time to time in any third party by any of the ordinary course of business.Acquired Companies;
(f) To BUYER's knowledge, there is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential information.
(g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or all licenses listed on Schedule 4.14(b) are in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality full force and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER effect and, to BUYER's knowledge, of such person, are enforceable in accordance with their respective terms. Except as would not, individually or in subject to the aggregate, Enforceability Exceptions; (ii) the Acquired Companies have a Material Adverse Effect on BUYER, performed all BUYER Intellectual Properties that are owned material obligations required to be performed by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been them pursuant to the terms of a written agreement between BUYER Contracts listed on Schedule 4.14(b); and such third party. All use(iii) there is no existing or, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms Company’s Knowledge, threatened default under or violation of a written agreement between BUYER and any of the Contracts listed on Schedule 4.14(b) by any other party thereto;
(g) an Acquired Company is the owner of record for each item of patented or registered Company Intellectual Property identified on Schedule 4.14(a), and has properly executed and recorded all documents necessary to perfect its title to such Confidential InformationIntellectual Property. The Acquired Companies have filed all documents and paid all Taxes, or is otherwise lawful.
(k) To the knowledge of BUYERfees, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related and other financial obligations required to or renew and maintain in BUYER Products are valid and in full force and effect all patented or registered Intellectual Property until Closing;
(h) (i) the Acquired Companies own, or have sufficient license to use, all Computer Software currently being used by the Acquired Companies; (ii) the Acquired Companies are in compliance in all material respectsrespects with all provisions of any Contract pursuant to which the Acquired Company has the right to use any Computer Software, including Desktop Software; and (iii) the consummation of the transactions transaction contemplated by this Agreement will not alter or impair any such rights.
(l) As used right, or cause any Acquired Company to be in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured violation of or sold by BUYER, and those products and software currently default under development by BUYER and which are material any Contract related to the business of BUYERComputer Software, or terminate, modify, or entitle any other party to terminate or modify any such Contract.
Appears in 1 contract
Sources: Securities Purchase Agreement (Beacon Roofing Supply Inc)
Intellectual Properties. (a) BUYER owns, or Attached hereto as Schedule 2.16 is licensed or otherwise has the right to use a correct list of all Intellectual Properties (other than off-the-shelf software programs that have not been customized for its use) material to and used in or necessary to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other PersonsProperty.
(b) BUYERExcept as set forth on Schedule 2.16, to Seller's ProductsKnowledge, including all softwareneither the manufacture, are free from material defects sale, use of any products now or heretofore manufactured or sold by Seller nor the operation of the Business did and perform in substantial accordance with all published specifications does infringe (if any)nor has any claim been made that any such action infringes) the patents or other Intellectual Property rights of others.
(c) BUYER has With respect to the portion of the Intellectual Property that is not granted any third owned by Seller ("Licensed Intellectual Property"), the Seller owns or possesses adequate licenses or other rights at reasonable market costs to use the same as necessary to conduct the Business as now conducted. Except as set forth on Schedule 2.16, there is no agreement to which Seller is a party any right or to license which Seller is legally bound and no restriction or Liens, materially and adversely affecting the use by Seller and, after the Closing, the use by Purchaser, of any of BUYER's Products except under valid the Licensed Intellectual Properties. There is no pending litigation or other legal action with respect to any of the Intellectual Properties, and binding Software License Agreementsno order, holding, decision or judgment has been rendered by any Authority, and no agreement, consent or stipulation exists to which, in any such event, Seller is a party or of which Seller has knowledge, which would prevent Seller, or after the Closing, Purchaser, from using any of the Intellectual Properties.
(d) No third party has been licensed The operation of the Business by Purchaser will not result in Purchaser being required either (i) to usepay any royalties, other payments or consideration, or has lawful access to(ii) to grant any right, to any source code developed in third parties, either directly or indirectly or through Seller, with respect to the Intellectual Property rights of BUYER's Products, except escrow agreements entered into in the ordinary course of businesssuch third parties.
(e) No product liability Schedule 2.16 (e) sets forth a true and correct description of Seller's Year 2000 plan together with a description of the current status of the execution of the plan. Seller has, as of the date hereof, taken all reasonable steps, and made every reasonable effort, to substantially comply with, implement, carry out and effectuate all of the requirements, steps, measures and procedures, and meet all the guidelines and deadline, as set forth in such plan. Seller has no knowledge of any event, occurrence, condition or warranty claims have been communicated reason that would prevent, or interfere with, the implementation of the plan substantially in writing to or threatened accordance with the guidelines and deadlines set forth in writing against BUYER, other than those encountered from time to time in the ordinary course of businesssuch plan.
(f) To BUYER's knowledgeSchedule 2.16 lists all actions that must be taken by Purchaser within sixty (60) days of the Closing Date, there is and has been no material unauthorized use, disclosure, infringement or misappropriation including the payment of any BUYER Intellectual Properties owned by BUYER by registration, maintenance or renewal fees or the filing of any third party. To BUYER's knowledgedocuments, none of BUYER Intellectual Properties owned by BUYER applications or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures certificates for the preservation purposes of maintaining, perfecting or preserving or renewing any of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential informationProperty.
(g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation of the transactions contemplated by this Agreement will not alter or impair any such rights.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Intellectual Properties. (a) BUYER ownsSection 4.13(a) of the Disclosure Letter sets forth a listing of all registered Company Intellectual Property and all pending applications therefor.
(b) Section 4.13(b) of the Disclosure Letter sets forth a listing of all written licenses pursuant to which any of the Acquired Companies is a party either as a licensee or licensor and any other Contract under which any of the Acquired Companies grants or receives any rights to Intellectual Property (the “Licenses”).
(c) Except as set forth in Section 4.13(c) of the Disclosure Letter, or is licensed or otherwise has the right to use Acquired Companies are the exclusive owners of and possess all Intellectual Properties (other than off-the-shelf software programs that have not been customized for its use) material to right, title and used interest in or necessary and to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES")Company Intellectual Property, free and clear of all liens, claims and encumbrancesLiens, except for such liensthe Permitted Liens. Their Company Intellectual Property is valid, claims subsisting, in full force and encumbrances as do not materially impair BUYER's ability to useeffect, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other Persons.
(b) BUYER's Products, including all software, are free from material defects and perform in substantial accordance with all published specifications (if any).
(c) BUYER has not granted any third party any right to license any of BUYER's Products except under valid and binding Software License Agreementsbeen cancelled, expired or abandoned.
(d) No The Acquired Companies have a valid and enforceable right or license to use (as currently being used) the material Intellectual Property used in their businesses that is owned by a third party has been licensed party, subject to use, or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of businessEnforceability Exceptions.
(e) No product liability The Company Intellectual Property and the Intellectual Property used but not owned by the Acquired Companies are not subject to any material restrictions or warranty claims have been communicated in writing to limitations regarding use or threatened in writing against BUYER, disclosure other than those encountered from time pursuant to time in the ordinary course of businessa written License applicable thereto.
(f) To BUYER's knowledge, there is None of the Acquired Companies has received in the three (3) year period prior to the date of this Agreement any written notice (including cease and has been no material unauthorized use, disclosure, desist letters or invitations to take a patent license) regarding the infringement or misappropriation by any Acquired Company of any BUYER Intellectual Properties owned by BUYER by Property of any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential information.
(g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually The conduct of the Acquired Companies’ businesses does not infringe upon or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER misappropriate any Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance Property of any third party or entity OR were created by or with party, and (ii) to the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements.
(j) All useCompany’s Knowledge, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a no third party is infringing or has been pursuant to the terms of a written agreement between BUYER and such third party. All useinfringed, disclosure misappropriated or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation violated any of the transactions contemplated by this Agreement will not alter or impair any such rightsCompany Intellectual Property.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Intellectual Properties. (a) BUYER owns, or is licensed or otherwise has Schedule 4.12(a) sets forth a listing of all registered Company Intellectual Property and all pending applications therefor.
(b) Schedule 4.12(b) sets forth a listing of all Software used by the right to use all Intellectual Properties Company in connection with the business (other than offexcluding Off-the-shelf software programs that have Shelf Software), all written licenses (excluding licenses for Off-the-Shelf Software and end user licenses for mass market Software) pursuant to which the Company is a party either as a licensee or licensor and any other Contract under which the Company grants or receives any rights to Intellectual Property (the “Licenses”), and any Licensed IP.
(c) Except as set forth on Schedule 4.12(c), the Company owns all right, title and interest in and to the Company Intellectual Property. The Company Intellectual Property is subsisting, in full force and effect, and has not been customized cancelled, expired or abandoned, and to the Company’s Knowledge is valid. Each item of Intellectual Property necessary for its usethe operation of the Company’s business as of Closing will be owned or available for use by Buyer on materially identical terms and conditions immediately subsequent to Closing.
(d) material The Company has a valid and enforceable right or license to and use (as currently being used) the Licensed IP used in or necessary its business, subject to the Enforceability Exceptions.
(e) The Company has not received in the past three (3) years any written notice regarding the infringement or misappropriation by the Company of any Intellectual Property of any third party.
(f) The conduct of the Company’s business as currently conducted does not infringe upon or misappropriate any Intellectual Property of BUYER any third party, and to the Company’s Knowledge, no third party is infringing or has infringed, misappropriated or otherwise violated any of the material Company Intellectual Property.
(g) Except as now being conducted set forth on Schedule 4.12(g), the computer systems, including software, hardware, networks, interfaces and related services (collectively, “Systems”) used by the Company are reasonably sufficient for the immediate needs of the business including having the capacity and ability to process current peak volumes in a timely manner as presently proposed by BUYER necessary for the conduct of the Company’s business, and there have been no material failures, breakdowns, breaches, outages or unavailability in the last twelve (12) months.
(h) The Company maintains policies and procedures regarding data security and privacy that are in compliance with all applicable Laws. In the past three (3) years, to be conducted the Company’s Knowledge, there have been no material security breaches relating to, violations of any security policy regarding or any unauthorized access of any data or information used in the Company, including any notices or complaints from any Person regarding personal information. The execution and performance of this Agreement will not violate, in any material respect, any privacy policy, terms of use, or Laws relating to the use, dissemination, or transfer of such data or information.
(i) With respect to each item of Company Intellectual Property:
(i) The Company possesses all right, title and interest in and to the "BUYER INTELLECTUAL PROPERTIES")item, free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (Liens or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other Persons.licenses;
(bii) BUYER's Products, including all software, are free from material defects and perform in substantial accordance with all published specifications (if any).
(c) BUYER has The item is not granted any third party any right to license any of BUYER's Products except under valid and binding Software License Agreements.
(d) No third party has been licensed to use, or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of business.
(e) No product liability or warranty claims have been communicated in writing to or threatened in writing against BUYER, other than those encountered from time to time in the ordinary course of business.
(f) To BUYER's knowledge, there is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding injunction, judgment, order, decree, judgmentruling, or stipulation. No litigation (charge or other proceedings in restriction of any Governmental Authority;
(iii) No action, suit, proceeding, hearing, investigation, charge, complaint, claim or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis demand is pending, nor or, to BUYER's knowledgethe Company’s Knowledge, threatened against BUYER. BUYER maintains reasonable security measures for which challenges the preservation legality, validity, enforceability, use, or ownership of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets item; and
(iv) Neither the Company nor Seller has agreed to indemnify any other Person for or against any interference, infringement, misappropriation or other confidential information.
(g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER conflict with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided respect to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreementsitem.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation of the transactions contemplated by this Agreement will not alter or impair any such rights.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Intellectual Properties. (a) BUYER ownsSection 4.15(a) of the Disclosure Letter sets forth a list of all registered Intellectual Property, or is licensed or otherwise has the right to use all pending applications for registration of Intellectual Properties Property and material unregistered Intellectual Property (other than offTrade Secrets) of the Acquired Companies. Section 4.15(b) of the Disclosure Letter sets forth all written licenses (excluding Off-the-shelf software programs that have not been customized Shelf Software and end user licenses for its usemass market Software) material to and used in or necessary to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) which any of the source codes Acquired Companies is a party either as a licensee or licensor and all related programs and documentation sufficient any other material agreements under which the Acquired Companies grant or receive any rights to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other Persons.Property. {P02534_X101.HTM;8}
(b) BUYER's ProductsThe Acquired Companies own and possess all, including all softwareright, are free from material defects title and perform interest in substantial accordance with all published specifications (if any)and to, or have a valid and enforceable right or license to use the Company Intellectual Property as currently being used.
(c) BUYER has Except for the Permitted Liens, the Company Intellectual Property is not granted subject to any third party Liens and is not subject to any right restrictions or limitations regarding use or disclosure other than pursuant to the written license any agreements disclosed in Section 4.15(b) of BUYER's Products except under valid and binding Software License Agreementsthe Disclosure Letter.
(d) No third party The Company Intellectual Property owned by any of the Acquired Companies and the Company Intellectual Property used by any of the Acquired Companies, is valid, subsisting, in full force and effect, and has not been licensed to usecancelled, expired or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of businessabandoned.
(e) None of the Acquired Companies has infringed, misappropriated or otherwise conflicted with, any Intellectual Property of any third party. None of the Acquired Companies has received in the past three (3) years any written notice regarding any of the foregoing, including, without limitation, any demands or offers to license any Intellectual Property from any third party.
(f) No product liability third party is infringing or warranty has infringed, misappropriated or otherwise violated any of the Company Intellectual Property. No such claims have been communicated in writing to brought or threatened in writing against BUYER, other than those encountered from time to time in the ordinary course of business.
(f) To BUYER's knowledge, there is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYER's knowledge, none of BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that constitute trade secrets or other confidential information.
(g) To BUYER's knowledge, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties of any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use of any Intellectual Properties is pending, or to BUYER's knowledge, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation any of the transactions contemplated by this Agreement will not alter or impair any such rightsAcquired Companies.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Sources: Securities Purchase Agreement (Patrick Industries Inc)
Intellectual Properties. (a) BUYER Section 5.10 of the Disclosure Schedule lists all patents, patent applications, trademarks, trade names, service marks, logos, copyrights, technology, know-how, trade secrets, processes, formulas, techniques, and licenses used in or necessary to the businesses of the Company as now being conducted (collectively, the "INTELLECTUAL PROPERTIES"). The Company owns, or is licensed or otherwise has the full and unrestricted exclusive right to use use, without the payment of royalties or other further consideration except as indicated in Section 5.10 of the Disclosure Schedule, all Intellectual Properties, and no other intellectual property rights, privileges, licenses, contracts, or other agreements, instruments, or evidences of interests are necessary to or used in the conduct of the businesses of the Company.
(b) In any instance where the Company's rights to Intellectual Properties arise under a license or similar agreement (other than for off-the-shelf software programs that have not been customized for its use) material ), this is indicated in Section 5.10 of the Disclosure Schedule and, to and used the best of the Company's knowledge, such rights are licensed exclusively to the Company except as indicated in Section 5.10 of the Disclosure Schedule. No other person has an interest in or necessary right or license to use any of the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has To the right to obtain access pursuant to an escrow agreement) best of the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other Persons.
(b) BUYER's Products, including all software, are free from material defects and perform in substantial accordance with all published specifications (if any).
(c) BUYER has not granted any third party any right to license any of BUYER's Products except under valid and binding Software License Agreements.
(d) No third party has been licensed to use, or has lawful access to, any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of business.
(e) No product liability or warranty claims have been communicated in writing to or threatened in writing against BUYER, other than those encountered from time to time in the ordinary course of business.
(f) To BUYER's knowledge, there is and has been no material unauthorized use, disclosure, infringement or misappropriation of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYERCompany's knowledge, none of BUYER the Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is being infringed by others, or is subject to any outstanding order, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER the Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor or to BUYERthe best of the Company's knowledge, threatened against BUYERthreatened, nor, to the best of the Company's knowledge, is there any basis for any such litigation or proceeding. BUYER The Company maintains reasonable security measures for the preservation of the secrecy and proprietary nature of such of its BUYER Intellectual Properties that as constitute trade secrets or other confidential information.
(gi) To BUYER's knowledge, BUYER The Company has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties intellectual property or other proprietary or confidential information of any other person; and (ii) the activities of the Company's current and past employees and contractors in connection with their employment or contractual relationship with the Company did not and do not, to the best of the Company's knowledge, violate any agreements or arrangements that any such employees or consultants had or have with any former employer or any other person. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER the Company with infringement or unlawful use of any Intellectual Properties patent, trademark, service ▇▇▇▇, trade name, logo, copyright, trade secret, or other proprietary right is pending, or to BUYERthe best of the Company's knowledge, threatened against BUYERthreatened; nor is there any basis for any such litigation or proceeding.
(hd) To BUYERthe best of the Company's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems or technology currently under development) will recordno officer, storedirector, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999employee, or calculate consultant of the Company is obligated under or bound by any information dependent on agreement or relating to such date.
instrument, or any judgment, decree, or order of any court of administrative agency, that (i) Except as would notconflicts or may conflict with his agreements and obligations to use his best efforts to promote the interests of the Company, individually (ii) conflicts or in may conflict with the aggregatebusiness or operations of the Company, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if anyiii) with access authorized by BUYER to confidential restricts or may restrict the use or disclosure of any information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided that may be useful to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreementsCompany.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation of the transactions contemplated by this Agreement will not alter or impair any such rights.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract
Sources: Merger Agreement (Uromed Corp)
Intellectual Properties. (a) BUYER owns, or Attached hereto as Schedule 2.16 is licensed or otherwise has the right to use a correct list of all Intellectual Properties (other than off-the-shelf software programs that have not been customized for its use) material to and used in or necessary to the business of BUYER as now being conducted and as presently proposed by BUYER to be conducted (the "BUYER INTELLECTUAL PROPERTIES"), free and clear of all liens, claims and encumbrances, except for such liens, claims and encumbrances as do not materially impair BUYER's ability to use, exploit, license and distribute such BUYER Intellectual Properties. BUYER possesses (or has the right to obtain access pursuant to an escrow agreement) the source codes and all related programs and documentation sufficient to recreate the current and next most recent versions of any BUYER Intellectual Properties that BUYER has licensed from other PersonsProperty.
(b) BUYERExcept as set forth on Schedule 2.16, to Seller's ProductsKnowledge, including all softwareneither the manufacture, are free from material defects sale, use of any products now or heretofore manufactured or sold by Seller nor the operation of the Business did and perform in substantial accordance with all published specifications does infringe (if any)nor has any claim been made that any such action infringes) the patents or other Intellectual Property rights of others.
(c) BUYER has With respect to the portion of the Intellectual Property that is not granted any third owned by Seller ("Licensed Intellectual Property"), Seller owns or possesses adequate licenses or other rights at reasonable market costs to use the same as necessary to conduct the Business as now conducted. Except as set forth on Schedule 2.16, there is no agreement to which Seller is a party any right or to license which Seller is legally bound and no restriction or Liens, materially and adversely affecting the use by Seller and, after the Closing, the use by Purchaser, of any of BUYER's Products except under valid and binding Software License Agreementsthe Licensed Intellectual Properties.
(d) No third party There is no pending litigation or other legal action with respect to any of the Intellectual Properties, and no order, holding, decision or judgment has been licensed rendered by any Authority, and no agreement, consent or stipulation exists to usewhich, in any such event, Seller is a party or of which Seller has knowledge, which would prevent Seller, or has lawful access toafter the Closing, Purchaser, from using any source code developed in respect of BUYER's Products, except escrow agreements entered into in the ordinary course of businessIntellectual Properties.
(e) No product liability or warranty claims have been communicated The operation of the Business by Purchaser will not result in writing Purchaser being required either (i) to or threatened in writing against BUYERpay any royalties, other than those encountered from time payments or consideration, or (ii) to time in grant any right, to any third parties, either directly or indirectly or through Seller, with respect to the ordinary course Intellectual Property rights of businesssuch third parties.
(f) To BUYERSchedule 2.16(f) sets forth a true and correct description of Seller's knowledgeYear 2000 plan together with a description of the current status of the execution of the plan. Seller has, there is as of the date hereof, taken all reasonable steps, and made every reasonable effort, to substantially comply with, implement, carry out and effectuate all of the requirements, steps, measures and procedures, and meet all the guidelines and deadline, as set forth in such plan. Seller has been no material unauthorized use, disclosure, infringement or misappropriation knowledge of any BUYER Intellectual Properties owned by BUYER by any third party. To BUYER's knowledgeevent, none of BUYER Intellectual Properties owned by BUYER occurrence, condition or licensed to BUYER on an exclusive basis is being infringed by othersreason that would prevent, or is subject to any outstanding orderinterfere with, decree, judgment, or stipulation. No litigation (or other proceedings in or before any court or other governmental, adjudicatory, arbitral, or administrative body) relating to BUYER Intellectual Properties owned by BUYER or licensed to BUYER on an exclusive basis is pending, nor to BUYER's knowledge, threatened against BUYER. BUYER maintains reasonable security measures for the preservation implementation of the secrecy plan substantially in accordance with the guidelines and proprietary nature of deadlines set forth in such of its BUYER Intellectual Properties that constitute trade secrets or other confidential informationplan.
(g) To BUYER's knowledgeSchedule 2.16(g) lists all actions that must be taken by Purchaser within sixty (60) days of the Closing Date, BUYER has not infringed or made unlawful use of, and is not infringing or making unlawful use of, any Intellectual Properties including the payment of any other person. No litigation (registration, maintenance or other proceedings in renewal fees or before any court or other governmental, adjudicatory, arbitratory, or administrative body) charging BUYER with infringement or unlawful use the filing of any Intellectual Properties is pendingdocuments, applications or to BUYER's knowledgecertificates for the purposes of maintaining, threatened against BUYER.
(h) To BUYER's knowledge, all of BUYER's material information technology systems and material non-information technology embedded systems (including systems perfecting or technology currently under development) will record, store, process, calculate and present calendar dates falling on and after (and, if applicable, during spans of time including) January 1, 2000, and will calculate preserving or renewing any information dependent on or relating to such date in the same manner, and with the same functionality, data integrity and performance, as the information technology systems and non-information technology embedded systems record, store, process, calculate and present, calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such date.
(i) Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, each person presently or previously employed by BUYER (including independent contractors, if any) with access authorized by BUYER to confidential information relating to BUYER Intellectual Properties has executed a confidentiality and non-disclosure agreement pursuant to an agreement substantially in the form of agreement previously provided to the Company or its representatives, or is otherwise legally bound to preserve the confidentiality of such information, and such confidentiality and non-disclosure agreements constitute valid and binding obligations of BUYER and, to BUYER's knowledge, of such person, enforceable in accordance with their respective terms. Except as would not, individually or in the aggregate, have a Material Adverse Effect on BUYER, all BUYER Intellectual Properties that are owned by BUYER were written, developed and created solely and exclusively by employees of BUYER (and all rights in and to all BUYER Intellectual Properties are owned by BUYER) without the assistance of any third party or entity OR were created by or with the assistance of third parties who assigned ownership of their rights (including all intellectual property rights) in such BUYER Intellectual Properties to BUYER by means of valid and enforceable consultant confidentiality and invention assignment agreements.
(j) All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information owned by BUYER and licensed to a third party has been pursuant to the terms of a written agreement between BUYER and such third party. All use, disclosure or appropriation by BUYER (or its employees or agents) of Confidential Information not owned by BUYER has been made pursuant to the terms of a written agreement between BUYER and the owner of such Confidential Information, or is otherwise lawful.
(k) To the knowledge of BUYER, all of Company's patents, patent rights, copyrights, trademarks, trade names or Internet domain name registrations related to or in BUYER Products are valid and in full force and effect in all material respects; and consummation of the transactions contemplated by this Agreement will not alter or impair any such rightsIntellectual Property.
(l) As used in this Section 7.15: "PRODUCTS" means all products, including all software, now being manufactured or sold by BUYER, and those products and software currently under development by BUYER and which are material to the business of BUYER.
Appears in 1 contract