Intellectual Property and Technology. (a) Section 2.2(e) or Section 2.2(f) of the Disclosure Schedule contains a true and complete list of: (i) all Transferred Registered IP that is owned by or filed in the name of Seller or a Seller Subsidiary, specifying as to each item, as applicable: (A) the nature of the item, including the title of the item, (B) the owner of the item, (C) the jurisdictions in which the item is issued or registered or in which an application for issuance or registration has been filed, and (D) the issuance, registration or application numbers and dates; (ii) all Transferred Intellectual Property, including a description thereof; (iii) a list and version number, if applicable, of all Software used in connection with the Business; and (iv) all licenses and other similar agreements and permissions (provided, that Section 2.3(f) of the Disclosure Schedule need not list any Off-the-Shelf Software Licenses, but such Off-the-Shelf Software Licenses shall be included in the definition of Business IP Licenses) under which Seller or any Seller Subsidiary is a licensee or otherwise is authorized to distribute, use or practice in connection with or in support of the Business any Intellectual Property owned by a third party (such licenses and other similar agreements and permissions, collectively, “Business IP Licenses”). Section 2.2(f) of the Disclosure Schedule separately lists all third party components included or embedded in, or distributed or licensed with, the Business Proprietary Software. (b) Seller or a Seller Subsidiary owns and possesses all right, title and interest in and to the Owned Business IP and has sufficient rights pursuant to a valid and enforceable Business IP License to, all other Transferred Intellectual Property used in, held for use in, or necessary for the operation of, the Business as currently conducted and as currently proposed to be conducted, in each case free and clear of all Liens, other than Permitted Encumbrances. Seller has not received any written or, to the Knowledge of Seller, oral notice or claim challenging the ownership or validity of any Owned Business IP or asserting that any other Person has any claim of legal or beneficial ownership or exclusive rights with respect thereto, nor, to the Knowledge of Seller, is there a reasonable basis for any such notice or claim. Seller or a Seller Subsidiary has complied in all material respects with the terms and conditions of each of the Business IP Licenses; Seller has not received any written or, to the Knowledge of Seller, other notice from any Person asserting a breach of, termination, or non-renewal (or intent to terminate or not renew) any of the Business IP Licenses. (c) Except as set forth in Section 3.6(c) of the Disclosure Schedule, there are no restrictions on Seller’s or any Seller Subsidiary’s use, release, sale, disclosure, communication or modification of the Owned Business IP. Seller or the Seller Subsidiaries have complied in all material respects with any settlement agreements or Orders relating to their use of, or agreement not to use, any Transferred Intellectual Property. (d) Assuming the consents set forth on Section 3.6(d) of the Disclosure Schedule are obtained, consummation of the Acquisition will not result in the loss or impairment of the rights of Seller or any Seller Subsidiary to own or use any of the Owned Business IP or use any Intellectual Property included in the Transferred Intellectual Property which Seller or any Seller Subsidiary uses pursuant to a Business IP License; and neither Seller nor any Seller Subsidiary has not violated, and as a result of the execution and delivery of this Agreement or the performance of its obligations hereunder will not violate, any Business IP License. (e) To the Knowledge of Seller, the operation of the Business does not infringe, misappropriate, dilute or otherwise violate, and has not, infringed, misappropriated, diluted or otherwise violated, any Intellectual Property of any Person; and neither Seller nor any Seller Subsidiary has received any written notice regarding the foregoing (including any demand or request that Seller or any Seller Subsidiary license any rights from a third party or customer requests for indemnity), nor, to the Knowledge of Seller, is there a reasonable basis for any such notice or claim. To the Knowledge of Seller, no Person has infringed, misappropriated, diluted or otherwise violated any of the Owned Business IP. Neither Seller nor any Seller Subsidiary has received any written or, to the Knowledge of Seller, oral request for indemnification or notice that any Person believes it may have an indemnification claim against Seller or any Seller Subsidiary related to any Transferred Registered IP and, to the Knowledge of Seller, no basis exists for any such claim. (f) Each Person who has participated in the conception, creation, or development of any Owned Business IP has executed and delivered to Seller or a Seller Subsidiary a valid and enforceable Contract providing for the present assignment by such Person to Seller of all such Owned Business IP. (g) Seller or the Seller Subsidiaries have taken all steps they reasonably believe under the circumstances protect, preserve and maintain in confidence all Owned Business IP that constitutes, or that Seller or a Seller Subsidiary intended to retain as, a material Trade Secret. To the Knowledge of Seller, no such Trade Secrets have been disclosed or authorized to be disclosed to any Person not subject to a written confidentiality agreement or to an employee of Seller or a Seller Subsidiary who is not required to maintain the confidentiality of such Trade Secrets under Seller’s or any Seller Subsidiary’s employment policies. (h) To the Knowledge of Seller, there has been no actual or alleged theft, breach of security, or unauthorized use, disclosure, access or intrusions of any Trade Secrets of the Business. (i) Section 3.6(i) of the Disclosure Schedule sets forth a complete and accurate list of all Open Source Software (and the applicable license) incorporated into any Software or product that is licensed or distributed by Seller or any Seller Subsidiary to customers of the Business. None of the Business Proprietary Software or any other Software used, licensed or distributed by the Business requires any Transferred Intellectual Property be disclosed or distributed in source code form or for free to recipients, or requires Seller or any Seller Subsidiary to permit recipients to modify, make derivative works of, reverse engineer, or redistribute any Business Proprietary Software. Seller and the Seller Subsidiaries are in compliance with and has complied with all restrictions and other terms set forth in any Business IP License pursuant to which Seller or any Seller Subsidiaries uses any Open Source Software. (j) The source code to the Business Proprietary Software contains source comments and/or its associated documentation is sufficiently detailed, and contains such supporting information as would allow a relevantly skilled IT professional to: (i) assemble, compile, debug, support and improve the source code of such Software and (ii) use, maintain, adapt and enhance all applications currently provided to the public as part of the Business. To the Knowledge of Seller, the Business Proprietary Software does not contain any virus, Trojan horse, worm, time bomb, trap door, disabling device, or other harmful code that may cause the unauthorized destruction or corruption of Software or data. (k) Except as set forth in Section 3.6 of the Disclosure Schedule, no Seller or Seller Subsidiary has ever deposited or agreed to deposit any source code of any Business Proprietary Software in a source code escrow account, nor has it ever delivered or agreed to deliver or make available to any Person any source code.
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Intellectual Property and Technology. (a) Section 2.2(eSchedule 4.11(a)(i) or Section 2.2(f) identifies as of the Disclosure date of this Agreement each Business Product currently made available to third parties for sale, license or lease, together with any (i) Business Product currently under development by Seller, as reflected by Seller’s regular product planning cycle as of the date of this Agreement, or (ii) Business Product previously made available to third parties for sale, license, or lease in the four-year period prior to the date of this Agreement. Schedule 4.11(a)(ii) contains a true list of all Contracts pursuant to which Seller is obligated to pay royalties, fees, commissions, and other amounts to third parties for the manufacture, sale, or distribution of any Business Product or the use of any Intellectual Property Assets or Intellectual Property Rights of any third party. Except as set forth on Schedule 4.11(a)(ii), no consents or permissions are required in order for the Business Products to be manufactured, sold, or distributed.
(b) Schedule 4.11(b) contains a correct, current, and complete list of: of (i) all Transferred Registered IP that is owned by or filed in the name of Seller or a Seller SubsidiaryIntellectual Property, specifying as to each itemeach, as applicable: (A) the nature of title, ▇▇▇▇, or design; the item, including the title of the item, (B) the owner of the item, (C) the jurisdictions in which the item is issued or registered jurisdiction by or in which an application for issuance or registration it has been issued, registered, or filed; the patent, and (D) the issuanceregistration, registration or application numbers serial number; the issue, registration, or filing date; and dates; the current status, (ii) all Transferred unregistered Trademarks and material unregistered Copyrights included in the Intellectual Property, including a description thereofProperty Assets; (iii) a list and version numberall material Software included in the Intellectual Property Assets, if applicable, of all Software used in connection with the Business; and (iv) all licenses and other similar agreements and permissions (provided, that Section 2.3(f) of the Disclosure Schedule need not list any Off-the-Shelf Software Licenses, but such Off-the-Shelf Software Licenses shall be included in the definition of Business IP Licenses) under which Seller or any Seller Subsidiary is a licensee or otherwise is authorized to distribute, use or practice in connection with or in support of the Business any Intellectual Property owned by a third party (such licenses and other similar agreements and permissions, collectively, “Business IP Licenses”). Section 2.2(f) of the Disclosure Schedule separately lists all third party components included Assets that are used or embedded in, or distributed or licensed with, the Business Proprietary Software.
(b) Seller or a Seller Subsidiary owns and possesses all right, title and interest in and to the Owned Business IP and has sufficient rights pursuant to a valid and enforceable Business IP License to, all other Transferred Intellectual Property used in, held for use in, or necessary for in the operation of, conduct of the Business as currently conducted and as currently proposed to be conducted, in each case free and clear of all Liens, other than Permitted Encumbrances. Seller has not received any written or, to the Knowledge of Seller, oral notice or claim challenging the ownership or validity of any Owned Business IP or asserting that any other Person has any claim of legal or beneficial ownership or exclusive rights with respect thereto, nor, to the Knowledge of Seller, is there a reasonable basis for any such notice or claim. Seller or a Seller Subsidiary has complied in all material respects with the terms and conditions of each of the Business IP Licenses; Seller has not received any written or, to the Knowledge of Seller, other notice from any Person asserting a breach of, termination, or non-renewal (or intent to terminate or not renew) any of the Business IP Licenses.
(c) Except Each item of Registered Intellectual Property is valid, subsisting (or in the case of applications, applied for), and enforceable, all registration, maintenance, and renewal fees due on or before the Closing Date in connection with such Registered Intellectual Property have been or will timely be paid by the Closing Date and all documents, recordations, and certificates in connection with such Registered Intellectual Property required to be filed on or before the Closing Date have been or will timely be filed with the relevant patent, copyright, trademark, or other authorities in the United States or foreign jurisdictions, as set forth in Section 3.6(c) the case may be, for the purposes of the Disclosure Scheduleprosecuting, there are no restrictions on maintaining, and perfecting such Registered Intellectual Property and recording Seller’s or any Seller Subsidiary’s use, release, sale, disclosure, communication or modification of the Owned Business IPownership interests therein. Seller or has the Seller Subsidiaries have complied in exclusive right to file, prosecute, and maintain all material respects applications, registrations and issuances with any settlement agreements or Orders relating respect to their use of, or agreement not to use, any Transferred the Registered Intellectual Property.
(d) Assuming Schedule 4.11(d) contains a correct, current, and complete list of all Intellectual Property Agreements, specifying for each the consents date, title, and parties thereto. Except as set forth on Section 3.6(dSchedule 4.11(d), in the Intellectual Property Agreements, the Seller has not granted to any Person exclusive rights to or under any Intellectual Property Assets, or grants to any Person the right to sublicense any Intellectual Property Assets.
(e) Except as set forth on Schedule 4.11(e), Seller is the sole and exclusive legal and beneficial, and with respect to the Intellectual Property Assets, record, owner of all right, title, and interest in and to the Intellectual Property Assets, and has the valid and enforceable right to use all other Intellectual Property Rights used or held for use in the conduct of the Disclosure Business as currently conducted, in each case, free and clear of Encumbrances other than Permitted Encumbrances. Except as set forth on Schedule are obtained4.11(e), Seller has entered into binding, valid, and enforceable written Contracts with each current and former employee and independent contractor who is or was involved in or has contributed to the invention, creation, or development of any Intellectual Property Assets during the course of employment or engagement with Seller whereby such employee or independent contractor (i) acknowledges Seller’s exclusive ownership of all Intellectual Property Assets invented, created, or developed by such employee or independent contractor within the scope of his or her employment or engagement with Seller, (ii) grants to Seller a present, irrevocable, royalty-free assignment of any ownership interest such employee or independent contractor may have in or to such Intellectual Property Assets, and (iii) irrevocably waives any right or interest, including any moral rights, regarding such Intellectual Property Assets, to the extent permitted by applicable Law. Seller has provided Buyer with true and complete copies of all such Contracts. To the Knowledge of Seller, no employee of Seller who is involved in the Business is (x) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties with respect to the Business, or (y) in breach of any Contract with any former employer or other Person concerning Intellectual Property Rights or confidentiality due to his or her activities as an employee of Seller involved in the Business.
(f) Except as set forth on Schedule 4.11(f), neither the execution, delivery, or performance of this Agreement, nor the consummation of the Acquisition transactions contemplated hereunder, will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the rights consent of Seller or any Seller Subsidiary other Person in respect of, Buyer’s right to own or use any of the Owned Business IP Intellectual Property Assets or use any Intellectual Property Rights subject to any Intellectual Property Agreement.
(g) Seller has taken all reasonable and necessary steps to maintain and enforce the Intellectual Property Assets and to preserve the confidentiality of all Trade Secrets included in the Transferred Intellectual Property which Seller Assets, including by requiring all Persons having access thereto to execute binding, written non-disclosure agreements.
(h) Except as set forth on Schedule 4.11(h), the conduct of the Business as currently and formerly conducted by Seller, including the use of the Intellectual Property Assets and the Intellectual Property Rights licensed under the Intellectual Property Agreements in connection therewith, have not infringed, misappropriated, or any Seller Subsidiary uses pursuant to a Business IP License; and neither Seller nor any Seller Subsidiary has not otherwise violated, and as a result of the execution and delivery of this Agreement or the performance of its obligations hereunder will not violate, any Business IP License.
(e) To the Knowledge of Seller, the operation of the Business does do not infringe, misappropriate, dilute or otherwise violate, and has not, infringed, misappropriated, diluted or otherwise violated, any violate the Intellectual Property Rights or other rights of any Person; and neither Seller nor any Seller Subsidiary has received any written notice regarding the foregoing (including any demand or request that Seller or any Seller Subsidiary license any rights from a third party or customer requests for indemnity), nor, to the Knowledge of Seller, is there a reasonable basis for any such notice or claim. To the Knowledge of Seller, no Person has infringed, infringed misappropriated, diluted or otherwise violated any of Intellectual Property Assets or the Owned Business IP. Neither Seller nor Intellectual Property Rights licensed under the Intellectual Property Agreements.
(i) Except as set forth on Schedule 4.11(i), there are no Actions (including any Seller Subsidiary has received any written opposition, cancellation, revocation, review, or other proceeding) settled, pending, or, to the Knowledge of Seller, oral request for indemnification threatened (including in the form of offers to obtain a license), in each case relating to the Business: (i) restricting in any manner the use, commercialization, exploitation, transfer, or notice that licensing by Seller of any Intellectual Property Asset or any Business Product; (ii) restricting the conduct of the Business in order to accommodate the Intellectual Property Rights of any Person; (iii) alleging any infringement, misappropriation, or other violation of the Intellectual Property Rights of any Person believes it may have an indemnification claim against by Seller or any Seller Subsidiary related to any Transferred Registered IP and, to the Knowledge of Seller, no basis exists for any such claim.
(f) Each Person who has participated in the conception, creation, or development of any Owned Business IP has executed and delivered to Seller or a Seller Subsidiary a valid and enforceable Contract providing for the present assignment by such Person to Seller of all such Owned Business IP.
(g) Seller or the Seller Subsidiaries have taken all steps they reasonably believe under the circumstances protect, preserve and maintain in confidence all Owned Business IP that constitutes, or that Seller or a Seller Subsidiary intended to retain as, a material Trade Secret. To the Knowledge of Seller, no such Trade Secrets have been disclosed or authorized to be disclosed to any Person not subject to a written confidentiality agreement or to an employee of Seller or a Seller Subsidiary who is not required to maintain the confidentiality of such Trade Secrets under Seller’s or any Seller Subsidiary’s employment policies.
(h) To the Knowledge of Seller, there has been no actual or alleged theft, breach of security, or unauthorized use, disclosure, access or intrusions of any Trade Secrets conduct of the Business.
; (iiv) Section 3.6(ichallenging the validity, enforceability, registrability, patentability, or ownership of any Intellectual Property Assets; (v) of the Disclosure Schedule sets forth a complete and accurate list of all Open Source Software (and the applicable license) incorporated into any Software or product that is licensed or distributed by Seller or any other Person alleging any infringement, misappropriation, or violation by any Person of any Intellectual Property Assets; or (vi) against any Person who may be entitled to be indemnified by Seller Subsidiary under a Contract with Seller with respect to customers such claim. Seller does not have Knowledge of any facts or circumstances that could reasonably be expected to give rise to any such Action. Seller is not subject to any outstanding Governmental Order (including any motion or petition therefor) that does or could reasonably be expected to restrict or impair the use of any Intellectual Property Assets, nor does Seller have any Knowledge of any facts or circumstances that could reasonably be expected to justify or result in any such Governmental Order, except as set forth on Schedule 4.11(i). No third party has submitted or filed any opposition, re-examination, or cancellation action against any of the Business. None of the Business Proprietary Software or any other Software used, licensed or distributed by the Business requires any Transferred Registered Intellectual Property be disclosed or distributed in source code form or for free to recipients, or requires Seller or any Seller Subsidiary to permit recipients to modify, make derivative works of, reverse engineer, or redistribute any Business Proprietary Software. Seller and the Seller Subsidiaries are in compliance with and has complied with all restrictions and other terms set forth in any Business IP License pursuant to which Seller or any Seller Subsidiaries uses any Open Source SoftwareProperty.
(j) The source code Schedule 4.11(j) contains a correct, current, and complete list of all Technology Seller owns or otherwise has the right to use for the conduct of the Business Proprietary Software contains source comments and/or its associated documentation is sufficiently detailedas currently conducted. The Intellectual Property Assets and all Intellectual Property Rights subject to Intellectual Property Agreements constitute all of the Technology and Intellectual Property Rights necessary to operate the Business as currently conducted. Seller has obtained all approvals necessary for exporting such Technology outside the United States, and contains importing such supporting information as would allow a relevantly skilled IT professional to: (i) assembleTechnology into any country, compilein which such Technology is currently sold, debugused, support and improve the source code of such Software and (ii) licensed for use, maintainor otherwise distributed, adapt and enhance all applications currently provided to the public as part of the Business. To the Knowledge of Sellersuch approvals are valid, the Business Proprietary Software does not contain any viruscurrent, Trojan horse, worm, time bomb, trap door, disabling device, or other harmful code that may cause the unauthorized destruction or corruption of Software or dataand in full force and effect.
(k) Except as set forth in Section 3.6 on Schedule 4.11(k), Seller has not disclosed, licensed, made available, or delivered to any escrow agent or any third party any of the Disclosure Schedulesource code for any Software used in the Business (other than source code for software drivers, APIs, and similar tools, or immaterial portions of source code of Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations, or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient). Seller has no Seller duty or Seller Subsidiary obligation (whether present, contingent, or otherwise) to deliver, license, or make available the source code for any Software to any escrow agent or other Person. No event has ever deposited occurred, and no circumstance or agreed condition exists, that (with or without notice or lapse of time) legally entitles a Person to deposit delivery, license, or disclosure of any source code for any Software used in the Business where such Person is not, as of the date of this Agreement, an employee of Seller.
(l) No Software used in the Business is subject to or affected by any “copyleft” or other obligation or condition (including any obligation or condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that (i) requires, or conditions the use or distribution of such Software on, (A) the disclosure, licensing, or distribution of the source code for such Software or portion thereof or (B) the granting to licensees of the right to make derivative works or other modifications to such Software or portion thereof, (ii) imposes any restriction on the consideration to be charged for the distribution thereof, (iii) creates, or purports to create, obligations for Seller with respect to any such Software or grants, or purports to grant, to any third party, any rights or immunities under any such Software, or (iv) imposes any other material limitation, restriction, or condition on the right of Seller with respect to its use or distribution.
(m) To the Knowledge of Seller, no Business Product or Software used in the Business contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware,” or “adware” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing or facilitating, any of the following functions: disrupting, disabling, harming, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed (collectively, “Malicious Code”). Seller implements reasonable measured designed to prevent the introduction of Malicious Code into the Business Products and any Software used in the Business, including firewall protections and regular virus scans.
(n) All source code and documentation for the Software and Technology is accurate, complete, and is reasonably documented to enable a Software developer of similar skill to understand, modify, debug, compile, assemble, support, and otherwise utilize all aspects of the Software and Technology to which they pertain, without reference to other sources of information. The Software and Technology included as part of or used by Seller in connection with the Business Products operates and performs in substantial accordance with its documentation and functional specifications and otherwise as required in connection with, the operation of the Business as current conducted.
(o) Seller has complied in all material respects with all applicable Laws and the Seller’s privacy policy relating to the use, collection, storage, disclosure, transfer, or other processing of any Business Proprietary Software personally identifiable information collected by Seller in a source code escrow accountconnection with the Business. The consummation of the transactions contemplated by this Agreement will not violate any applicable Laws relating to the use, nor collection, storage, disclosure, or transfer of any personally identifiable information collected by Seller. Seller has it ever delivered not received any claims or agreed to deliver complaints regarding Seller’s collection, use, disclosure or make available to any Person any source codeother processing of personally identifiable information in connection with the Business.
(p) The representations and warranties set forth in this Section 4.11 are Parent’s and Seller’s sole and exclusive representations and warranties regarding intellectual property matters.
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