Intellectual Property and Privacy. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a complete and accurate list as of the date hereof of all Company Registered IP. Except as would not constitute a Company Material Adverse Effect, each item of Company Registered IP is currently in compliance with all formal legal requirements (including payment of filing, examination and maintenance fees) and, to the extent issued, is, to the Knowledge of the Company, subsisting and not invalid or unenforceable. The Company, or a Subsidiary of the Company, owns the Company Intellectual Property free and clear of all Liens, except for Permitted Liens. (b) As of the date hereof, Company has not received written notice of claims that are pending or, to the Knowledge of the Company, threatened in writing, (i) challenging the ownership, enforceability or validity of any Company Intellectual Property, or (ii) alleging that the Company or any of its Subsidiaries is violating, misappropriating or infringing the rights of any Person with regard to any Intellectual Property. (c) Except as would not constitute a Company Material Adverse Effect, (i) no Person is violating, misappropriating or infringing any Company Intellectual Property, and (ii) to the Knowledge of the Company, the operation of the business of the Company and its Subsidiaries as currently conducted does not violate, misappropriate or infringe the Intellectual Property of any other Person. (d) Except as would not constitute a Company Material Adverse Effect, the Company and its Subsidiaries have taken such steps as are reasonably necessary to protect their respective rights in material Trade Secrets. In addition to the foregoing, each Company employee, and each consultant or contractor, engaged in the development or creation of any material technology, or Intellectual Property for Company or its Subsidiaries has executed a valid and enforceable proprietary information, confidentiality and assignment agreement sufficient to irrevocably assign (except as limited by applicable Law) any Intellectual Property developed by such employee, consultant or contractor for the Company or such Subsidiary to the Company or such Subsidiary. (e) Section 3.14(e) of the Company Disclosure Schedule lists all Contracts to which the Company or any of its Subsidiaries is a party as of the date hereof that grants to Company or any of its Subsidiaries a license, ownership rights, an option to, or other rights in or to any Intellectual Property owned by a third Person and that is material to the business of the Company and its Subsidiaries take as a whole, other than (A) licenses to commercially available software on substantially standard terms and conditions that are available as of the date of this Agreement or (B) Contracts with third parties pursuant to which the Company or any Subsidiary is granted a license or other right in or to any Intellectual Property provided by such third parties on the Company’s standards terms and conditions or in connection with the provision of services by, or in exchange for any payment from, the Company, including any user-generated data or content. (f) Section 3.14(f) of the Company Disclosure Schedule lists all Contracts to which the Company or one of its Subsidiaries is a party as of the date hereof under which Company or such Subsidiary grants any third Person a license or other rights in or to any material Company Intellectual Property, other than the Material Customer Agreements or any other customer, developer and reseller licenses, and service agreements. (g) The Company and its Subsidiaries maintain commercially reasonable policies and procedures regarding data security and privacy, including procedures reasonably designed to detect and remedy data security breaches and unauthorized access or unauthorized use of the Company’s and its Subsidiaries’ information technology systems, including systems that store or process Personal Data. The Company and its Subsidiaries are, in all material respects, in compliance with Company’s Privacy Policies and all applicable Privacy Laws. To the Knowledge of the Company, as of the date of this Agreement, there have been no material losses or thefts of or material data or security breaches with respect to, Personal Data. For the past five (5) years, the Company and its Subsidiaries have not been involved in any Action related to Personal Data, Privacy Policies, or Privacy Laws. (h) Notwithstanding any other provisions of this Agreement to the contrary, the representations and warranties made in this Section 3.14 are the sole and exclusive representations and warranties of the Company with respect to the matters set forth in this Section 3.14, including Intellectual Property matters and matters relating to Personal Data and privacy.
Appears in 1 contract
Sources: Merger Agreement (Xo Group Inc.)
Intellectual Property and Privacy. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a complete and accurate list as of the date hereof of all Company Registered IP. Except as would not constitute a Company Material Adverse Effect, each item of Company Registered IP is currently in compliance with all formal legal requirements (including payment of filing, examination and maintenance fees) and, to the extent issued, is, to the Knowledge of the Company, subsisting and not invalid or unenforceable. The Company, or a Subsidiary of the Company, except for Intellectual Property exclusively licensed to the Company, is the sole and exclusive owner and owns all right, title, and interest in and to each item of the Company Intellectual Property free and clear of all Liens, except for Permitted LiensLiens and non-exclusive licenses granted in the ordinary course of business.
(b) As of the date hereof, Company has not received written notice of No claims that are pending or, to the Knowledge of the Company, threatened in writingor threatened, (i) challenging the ownership, enforceability or validity of any Company Intellectual PropertyProperty (except that this representation and warranty is given to the Knowledge of the Company with respect to Intellectual Property exclusively licensed to the Company), or (ii) alleging that the Company or any of its Subsidiaries is violating, misappropriating or infringing the rights of any Person with regard to any Intellectual Property, other than, in each case, as would not constitute a Company Material Adverse Effect.
(c) Except as would not constitute a Company Material Adverse Effect, (i) no Person is violating, misappropriating or infringing any Company Intellectual Property, and (ii) to the Knowledge of the Company, the operation of the business of the Company and its Subsidiaries as currently conducted does not violate, misappropriate or infringe the Intellectual Property of any other Person.
(d) Except as would not constitute a Company Material Adverse Effect, the Company and its Subsidiaries have taken such reasonable steps as are reasonably necessary to protect their respective rights in material Trade Secrets. In addition to Without limiting the foregoing, each Company employee, and each consultant or contractor, engaged in the development or creation of any material technology, or Intellectual Property for the Company or its Subsidiaries has executed a valid and enforceable proprietary information, confidentiality and assignment agreement sufficient to irrevocably assign (except as limited by applicable Law) any Intellectual Property developed by such employee, consultant or contractor for the Company or such Subsidiary to the Company or such Subsidiary.
(e) Section 3.14(e) of the Company Disclosure Schedule lists all Contracts to which the Company or any of its Subsidiaries is a party as of the date hereof that grants to the Company or any of its Subsidiaries a license, ownership rights, an option to, or other rights in or to any Intellectual Property owned by a third Person and that is material to the business of the Company and its Subsidiaries take taken as a whole, other than (A) licenses to commercially generally available software on substantially standard terms and conditions that are available as which is not distributed with, incorporated in, or necessary for use or development of, any product or service of the date of this Agreement Company and its Subsidiaries, and is not open source software, or (B) Contracts with third parties pursuant to which the Company or any Subsidiary is granted a license or other right in or to any Intellectual Property provided by such third parties on the Company’s standards terms and conditions or in connection with the provision of services by, or in exchange for any payment from, the Company, including any user-generated data or contentconditions.
(f) Section 3.14(f) of the Company Disclosure Schedule lists all Contracts to which the Company or one of its Subsidiaries is a party as of the date hereof under which the Company or such Subsidiary grants any third Person a license or other rights in or to any material Company Intellectual Property, other than non-exclusive licenses granted to customers, developers and resellers in the Material Customer Agreements ordinary course of business and on the Company’s standard terms (including in the course of the licensing of any Company products or provision of any other customer, developer and reseller licenses, and service agreementsservices by the Company or its Subsidiaries).
(g) The Company and its Subsidiaries maintain commercially reasonable policies and procedures regarding data security and privacy, including procedures reasonably designed to detect and remedy data security breaches and unauthorized access or unauthorized use of the Company’s and its Subsidiaries’ information technology systems, including systems that store or process Personal Data. The Except as would not constitute a Company Material Adverse Effect, the Company and its Subsidiaries are, in all material respects, in compliance with the Company’s Privacy Policies and all applicable Privacy Laws. To There have been no losses or thefts of data or security breaches with respect to, Personal Data that would reasonably be expected to be material to the Knowledge Company and its Subsidiaries, taken as a whole.
(h) Except as would not constitute a Company Material Adverse Effect, (i) the Systems that are used in the operations of the Companybusiness are reasonably sufficient for the immediate and anticipated needs of the Company and its Subsidiaries, including as to capacity, scalability, and ability to process current and anticipated peak volumes in a timely manner, (ii) in the past three (3) years, there has been no failure or other material substandard performance of any System, in each case which has caused a material disruption to the Company or its Subsidiaries, and (iii) the Company and its Subsidiaries has not been subjected to an audit of any kind in connection with any license or other Contract pursuant to which the Company or its Subsidiaries holds rights to any third-party Software, nor has the Company or its Subsidiaries received any notice of intent to conduct any such audit. Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement, there have been no material losses or thefts of or material data or security breaches with respect to, Personal Data. For the past five (5) years, the Company and its Subsidiaries have are not been involved in breach of any Action related of its Contracts or licenses relating to Personal Data, Privacy Policies, or Privacy Lawsany System.
(hi) Notwithstanding any other provisions Except as would not constitute a Company Material Adverse Effect, (i) the Company and its Subsidiaries lawfully own or license and will continue to lawfully own or license immediately after the Closing, valid rights as are sufficient to use all of this Agreement the Intellectual Property and Technology used by the Company and its Subsidiaries to the contrarysame extent as immediately prior to the Closing, and (ii) the representations and warranties made consummation of the Merger will not result in this Section 3.14 are the sole and exclusive representations and warranties loss or impairment of the Company with respect to the matters set forth and its Subsidiaries’ rights in this Section 3.14, including any Company Intellectual Property matters or Technology and matters relating will not result in the breach of, or create on behalf of any third party, the right to Personal Data terminate or modify any agreement as to which any Company or its Subsidiaries is a party and privacypursuant to which the Company or its Subsidiaries is authorized or licensed to use any third party Intellectual Property.
Appears in 1 contract
Sources: Merger Agreement (Global Brass & Copper Holdings, Inc.)